Law, memory and the

legacy of apartheid:
Ten years after
AZAPO v President of South Africa

Wessel le Roux and Karin van Marle (Editors)

2007
Law, memory and the legacy of apartheid: Ten years after AZAPO
v President of South Africa

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 Table of contents

Acknowledgments iv

The unmentioned names that remain (an introduction) v

by Wessel le Roux and Karin van Marle

PART 1: MEMORY AND LEGAL INTERPRETATION

1 Thoughts on dealing with the legacies of radically

unjust political behaviour
by Johan Snyman
3

2 Law’s time, particularity and slowness

by Karin van Marle
11

3 Transforming memory transforming

by Michael Bishop
33

4 AZAPO: monument, memorial ... or mistake?

by Lourens du Plessis
51

5 War memorials, the architecture of the

Constitutional Court building and counter-
monumental constitutionalism
65

by Wessel le Roux

PART 2: REPAIRING THE PAST, RESTORING THE FUTURE

6 Reading and writing archives: The TRC, big business

and reparations in post-apartheid South Africa
by Jaco Barnard
93

7 Good victim, bad victim: Apartheid’s beneficiaries,

victims and the struggle for social justice
by Tshepo Madlingozi
107

8 Ten years of democracy in South Africa: Revisiting

the AZAPO decision
by Nthabiseng Mogale
127

9 In defence of AZAPO and restorative justice

by Patrick Lenta
149

Contributors 183

Bibliography 184

Index 200

iii
 Acknowledgments

We wish to express our special thanks to the following people who

have supported us in this project:
Ulricke Kistner from UNISA, for her valuable assistance early on
with the organisation of the AZAPO retrospective on 18 August 2006.
Irene de Vos and Polina Dlagnakova, research assistants at the
University of Pretoria and the University of South Africa, for their
assistance with the editing and formatting of the papers.
Vusi Khumalo, for permission to use his artwork on the cover
design.
The editors of the South African Journal of Human Rights, for
permission to republish an earlier version of chapter 2 by Karin van
Marle, which originally appeared in the journal under the title ‘Law's
time, particularity and slowness’ (2003) 19 SAJHR 239.
The editors of SA Publiekreg/Public law, for permission to
republish an earlier version of chapter 9 by Patrick Lenta, which
originally appeared in the journal under the title ‘AZAPO, the TRC and
restorative justice: a retrospect’ (2005) 20 SAPR/PL 335.

Wessel le Roux and Karin van Marle (eds)

iv
The unmentioned names that remain
(an introduction)

Wessel le Roux and Karin van Marle

1 History

The Promotion of National Unity and Reconciliation Act 34 of 1995

came into operation on 1 December 1995. The Act set up the Truth
and Reconciliation Commission (TRC) to investigate the nature and
causes of apartheid, to make recommendations to government about
reparations to the victims of apartheid, and to grant amnesty to
perpetrators of gross human rights violations.1 Initially it was the
Committee on Amnesty entrusted with the last-mentioned task that
attracted most of the critical attention. The Committee was given the
power to grant amnesty to persons who, with a political motive, had
killed, abducted, tortured or severely ill-treated another person
during the conflict of the past (1 March 1960 to 10 May 1994).2
Perpetrators of such gross human rights abuses had to apply for
amnesty individually, but qualified for amnesty as soon as they made
a full disclosure of all relevant facts pertaining to the violation in
question.3 Once granted, the amnesty extinguished all criminal and
civil liability of the perpetrators. It also extinguished all forms of
vicarious liability, including that of the state.4 This left the victims of
these abuses effectively without any legal redress.
The constitutionality of the amnesty provisions was challenged in
the Cape High Court on 6 May 1996 by the Azanian People's
Organisation; Nontsikelelo Margaret Biko, widow of murdered anti-
apartheid activist Steve Bantu Biko; Churchill Mheli Mxenge, brother
of murdered activist Griffiths Mlungisi Mxenge, and Chris Ribeiro,
eldest son of murdered activist Fabian Ribeiro.5 It was argued,
alternatively, that the very fact of amnesty, or its wide scope,
constituted an unjustifiable violation of the constitutional right to
have justiciable disputes settled by a court of law. The Court rejected
the challenge. Shortly thereafter the matter served before the
Constitutional Court. On 25 July 1995, the Court held unanimously,
but in two separate judgments, that the amnesty provisions in the Act

1
Long title of the Act; see also sec 3.
2 Sec 1.
3 Sec 20.
4
Sec 20(7)(a).
5 AZAPO v TRC 1996 4 SA 562 (C).

v
vi Wessel le Roux & Karin van Marle

were constitutional.6 The Court reasoned that the interim

Constitution itself provided for amnesty and, in any case, that the
violation of the right to have access to justice was justified by the
unique demands and nature of the transition in South Africa. The
drafters of the Constitution (and the members of Parliament) decided
that it was necessary to establish the truth about the past in order to
enable reconciliation and to prevent the repetition of past injustices.
This decision was not merely a political compromise, but constituted
part of the foundational values and spirit of the new constitutional
order as a whole.7 Given this background, the only way of establishing
the truth of past abuses was to grant amnesty to those responsible for
those abuses.8 The vicarious liability of the state should be
extinguished, the Court held, not as a means of establishing the truth
of past abuses, but as a means of allowing government the freedom
and scope to develop a more comprehensive and inclusive reparation
policy.9
The AZAPO judgment cleared the way for the Amnesty Committee
of the TRC to start its work. Eventually the Amnesty Committee
received more than 7 000 applications, of which just more than 1 300
were successful. More than 350 applicants were refused amnesty after
public hearings had taken place. At the conclusion of its work, the
Amnesty Commission forwarded more than 8 000 cases to the National
Director of Prosecutions for further investigation and possible
prosecution. The first high profile prosecution for apartheid crimes
only began in August 2007 with the conviction and sentence of ex-
minister Adrian Vlok.
While amnesty applications were considered the Committee on
Reparation and Rehabilitation also undertook and concluded its work.
The Committee made extensive recommendations to government
about reparations to the victims of gross human rights abuses. Very
few of these recommendations were accepted and implemented by
government. The unfinished business of the TRC has, as a result,
become a controversial talking and rallying point. At the same time,
the spectre of criminal prosecutions and the attempt to claim
reparation from multinational companies in American civil courts
have highlighted the role of the courts in resolving the unfinished
business of the TRC.
There is extensive and growing literature on the role of law and
legal institutions in dealing with the legacy of the past in post-conflict

6 AZAPO v President of the Republic of South Africa 1996 4 SA 671 (CC).

7 Para 21.
8
Para 17.
9 Paras 42-46.
 Introduction vii

societies.10 However, there are very few, if any, significant South

African contributions to this literature. This is somewhat surprising as
many constitutional commentators have pointed to the central role
that an engagement with the apartheid past plays in the two post-
apartheid constitutions. Eduard Fagan, for one, speaks in this regard
of the ‘constitutional entrenchment of memory’.11 Karl Klare,
likewise, speaks about the ‘historical self-consciousness’ of the
Constitution as a transformative document.12 Given the effect of the
AZAPO judgment, the lack of a sustained engagement with the role of
law in post-conflict South Africa is nevertheless understandable. Any
attempt to think about the relationship between post-apartheid law
and the legacy of the past will first have to deal with the
jurisprudence and legacy of the AZAPO judgment.
To this end a seminar took place on 18 August 2006 at the
University of South Africa. The seminar sought to provide a
retrospective on the AZAPO judgment ten years after it had been
handed down. A number of the essays in this collection were originally
presented as papers at the seminar. However, from the discussions
during the day, it became apparent that the debate about the
relationship between law and memory in post-apartheid South Africa
needed to be extended beyond the confines of the event. That
realisation was the birth of this collection of essays. While still
focused on the AZAPO judgment, the collection now also includes a
number of essays which did not form part of the seminar, but which
have played an important role in what little debate there has been
around the question in South Africa.

2 Structure(s)

The essays in this volume all address a number of overlapping issues

and could therefore have been structured for and presented to the
metaphorical ideal reader in a number of different ways. The
structure eventually adopted represents only one (slightly less than)

10
See, for example, M Gabriel ‘Coming to terms with the East German border
guards cases’ (1999) 38 Columbia Journal of Transnational Law 375; M Osiel ‘Ever
again: legal remembrance of administrative massacre’ (1995) 144 University of
Pennsylvania Law Review 463; M Osiel Mass atrocity, collective memory and the
law (1997); L Douglas The memory of judgement: making law and history in the
trials of the Holocaust (2001); L Adler & P Zumbansen ‘The forgetfulness of
noblesse: A critique of the German foundation law compensating slave forced
laborers of the Third Reich’ (2002) 39 Harvard Journal on Legislation 1; E Stein
‘History against free speech: The new German law against the “Auschwitz” — and
other — “lies”’ (1986) 85 Michigan Law Review 277; L Mcnamara ‘History, memory
and judgement: Holocaust denial, the history wars and law’s problems with the
past’ (2004) 26 Sydney Law Review 353 391.
11 E Fagan ‘The constitutional entrenchment of memory’ in S Nuttall & C Coetzee
Negotiating the past: The making of memory in South Africa (1998) 249.
12
K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 South
African Journal of Human Rights 146.
viii Wessel le Roux & Karin van Marle

arbitrary example of this. We hope that the essays nevertheless

remain organised loosely enough to allow different orders or disorders
to establish themselves around the ideas and concerns of each new
reader.
The collection is divided into two parts, each with a distinctive
focus. The first part, ‘Memory and legal interpretation’, focuses
explicitly on the ability of law to institute and sustain different
politics of memory. The concerns here can be traced back to the
archiving of history which served in AZAPO as the most important
justification for amnesty. How is law related to the process of memory
making? How does law remember, if at all? How does law’s memory
relate to the wider process of aesthetic memorialisation in society?
These essays all in some way or another employ and develop the
metaphoric distinction between monumental and memorial politics of
memory. This distinction was initially introduced into South African
constitutional law by Johan Snyman.13 It has subsequently become a
key feature of what Karin van Marle, following the work of Snyman
and du Plessis, aptly names ‘memorial constitutionalism’.14 A brief
overview of Snyman’s original contribution and its subsequent
reception is provided by Wessel le Roux in chapter 5 of this collection.
However, the collection opens with another essay by Snyman in which
the relationship between constitutional law and the legacy of
radically unjust political behaviour is thematised afresh.
Snyman argues that the search for the truth of the past is not a
search for the true facts about the past, but the search for the
appropriate norms of political responsibility. The engagement with
the past is an ethical engagement with obligation and responsibility.
For this reason it cannot and dare not ever be concluded. From this
perspective, AZAPO was not a decision which was taken within a
secure and well-grounded constitutional framework, but a decision
about the grounding and security of the constitutional framework and
law as such. It raises the question whether it is ever possible to secure
the ground of constitutional norms in the wake of a radically unjust
past. Snyman answers the question in the negative. According to him,
our engagement with the past can never be concluded, because the
constitutional norms for political responsibility can never be stated in
clear enough terms.
Snyman’s radical anti-foundationalism sets the agenda for the
remaining essays in PART 1. Each essay explores how and to what
extent the memory of suffering and past injustice precludes the
Constitution from establishing itself as the ‘secure foundation’ of
which the post-amble of the interim Constitution speaks, in the same

13 J Snyman ‘Interpretation and the politics of memory’ (1997) Acta Juridica 312.
14
K van Marle ‘Lives of action, thinking and revolt – a feminist call for politics and
becoming in post-apartheid South Africa’ (2004) 19 SA Publiekreg/Public law 605.
 Introduction ix

breath as it introduces the post-apartheid search for truth. What is it

that constantly returns to mark the limits of the law, and to disrupt
the closure or normative integrity of the constitutional framework?
Each writer ventures her or his own understanding of why the liberal
ideal of constitutionalism itself became implicated in the AZAPO
judgment as law began to confront the legacy of apartheid.
Karin van Marle argues in chapter 2 that memory requires slowness
and attentiveness to particularity. Law, on the other hand, is
inescapably marked by a quest for speed through generalisations and
universally applicable and formalisable injunctions. For this reason
alone, law is fundamentally incapable of remembering and engaging
with suffering. Van Marle also adopts a slightly more critical stance
towards the TRC than Snyman. She suggests that the same fate befell
both the amnesty and human rights hearings of the Commission,
largely because of the influence of a legal mindset on the workings of
the TRC. Van Marle holds little hope for the institutionalisation (and
inevitable legalisation) of memory in society. Even a first reading of
the AZAPO judgment seems to underscore her reservations. In spite of
the nature of its concerns, the judgment deals exclusively with the
general provisions of the Constitution and the Act. It is most
comfortable with big, structural issues of transformation on a national
scale. The names and particularities of those who had died, or those
of their widows, brothers and sons, who now stood in court, are not
mentioned once. In the official published record of the case they
remain simply but tellingly designated as the ‘others’. They are the
other applicants. But is it too much also to state, as van Marle implies,
that our memory of them and their suffering will for ever remain other
to this law and this legal record?
Given the inherent limitations of law (and the TRC) as institutions
of collective memory, van Marle turns her attention to art. By
concentrating on the aesthetic techniques which underlie William
Kentridge's public and artistic engagement with the atrocities of
apartheid and Africa's colonial past, van Marle highlights the limits of
the law and underscores her claim that law is ultimately incapable of
responding to Adorno's injunction to lend a voice to suffering.
In chapter 3 Michael Bishop adopts a slightly different strategy.
Bishop does not concentrate, like van Marle, on the limits of law as a
mode of memory, but rather investigates the positive and
transformative role that memory can play in legal interpretation.
Bishop argues that memory was employed in AZAPO in order to
institute a linear conception of transition and transformation in South
Africa. Memory operated in that context as a restricting rhetorical
device aimed at shoring up a particular understanding of the
Constitution and its normative demands. This rhetorical trope has
been repeated in a series of subsequent cases. Bishop argues that the
use of memory as a strategy of closure cuts across the question
x Wessel le Roux & Karin van Marle

whether the memories in question are celebratory (good;

monumental) or commemorative (bad; memorial). This is not to say
that he wishes to rid law of the duty to remember. In fact, he
describes memory as a necessary, if insufficient, condition of
transformative constitutionalism. Bishop relies on case law to
illustrate how the memory of apartheid plays a vital role in legal
interpretation. His point, however, is that memory should be used not
to close meanings, but to create spaces and tensions within law.
According to Bishop, the nature of collective or public memory itself
points in this direction.
Lourens du Plessis employs a basic typology of constitutional
strategies of memory in order to make sense of the differences and
shifts between the judgments in S v Makwanyane,15 in which a nearly
identical bench of the Constitutional Court relied on international law
to declare the death penalty unconstitutional, and AZAPO, in which
the Court devised a number of interpretive strategies to limit the
influence of international law on the argument about post-apartheid
amnesty. The Court's engagement with international law is also taken
up in a number of the later chapters in Part 2 of the collection. Du
Plessis, however, argues that a constitution as a mode of memory can
be both a monument (a celebration) and a memorial (a
commemoration or Mahnmal) at the same time. Constitutional
judgments can appeal to the Constitution either as monument or
memorial. Makwanyane was a monumental judgment and a
celebration of the new constitutional order. AZAPO, by contrast, is
haunted by the dark side of the past and serves as a reminder of how
messy our past was. As such it marks the limits of jurisprudence and
the inability of universal human rights norms to deal with and properly
respond to that mess. While not denying the importance of a
celebratory constitutional jurisprudence, du Plessis regards judg-
ments like AZAPO as salient and important reminders of suffering and
as important moments of memorial resistance to the monu-
mentalisation and closure of constitutional law.
In the final chapter of PART 1, Wessel le Roux explores the
jurisprudential implications of the fact that the new South African
Constitutional Court building has been designed as a memorial to the
struggle and the imprisoned victims of apartheid in particular. He
highlights the memorial dimensions of the design and then explores
how South African legal writers have responded to the architectural
vision of constitutional interpretation as essentially a memorial, as
opposed to a monumental, activity.
In PART 2, ‘Repairing the past, restoring the future’, the focus of
the essays shifts from jurisprudential reflections on the politics of
memory to more direct engagements with issues of reparation and

15 S v Makwanyane 1995 3 SA 391 (CC), 1995 6 BCLR 665 (CC).

 Introduction xi

restoration in the wake of past injustices. The concerns here can be

traced back to the anticipated reparation policy which served in
AZAPO as the second important justification for a total amnesty. How
is law related to the process of reparation? How does law’s justice
relate to the wider process of restoration in society?
Jaco Barnard’s essay in chapter 6 provides the transition between
the politics of memory in PART 1 and the politics of reparation in PART
2. On the one hand he continues to explore some of the themes
already mentioned above. He relies explicitly, for example, on van
Marle's understanding of the institutional closure and violence of law
in order to criticise the legalisation of the TRC process. He also relies
on a deconstructive understanding of the nature of written texts,
archives and writing in order to resist the closure or what he explicitly
calls the monumentalisation of the official TRC history and report.
Like Snyman he rejects the idea that the writing of history is a factual
affair and calls for an ethical re-reading of the TRC report and the
AZAPO judgment in which the silences of the texts are constantly
revisited, precisely because they are paradoxically constantly
reproduced by the act of rewriting or re-reading.
What sets Barnard’s discussion apart is the detailed attention he
pays to the TRC report on the role of big business during apartheid.
He criticises the official TRC history because it is silent about crucial
aspects of this role. Because of these silences the report fails to
provide the necessary background for an effective reparation policy
in which big business should have played a central role.
In chapter 7 Tshepo Madlingozi continues to interrogate the role
of big business during and after apartheid. His main concern is why an
effective reparation policy failed to emerge after the TRC. Madlingozi
explores the tension between political reconciliation and social
reconciliation. In order to overcome the limits of the transitional
justice paradigm, in which the focus still falls on criminal or
retributive, as opposed to social and redistributive, justice, he
develops an extended understanding of victimhood so as to enlarge
the closed list of names put forward by the TRC. In this regard he also
criticises the legalisation of the TRC process, something which makes
the TRC process an unsound basis for the determination of apartheid's
victims. Madlingozi also criticises the narrow focus of the transitional
justice paradigm on the individual liability of perpetrators at the cost
of the systematic, structural socio-economic advantages secured by
beneficiaries. In other words, Madlingozi criticises the AZAPO
judgment and the TRC process for still being caught in the transitional
justice paradigm and its narrow conceptions of victims and
perpetrators. As an alternative to this paradigm, he proposes a
politics of redistribution as it has been formulated by social
movements like the Khulumani Support Group.
xii Wessel le Roux & Karin van Marle

The irony of Madlingozi's critique of the post-TRC reparation

policy is that the judgment in AZAPO already articulated some of the
same concerns. The Court stressed in that judgment that an exclusive
focus on perpetrators and victims of gross human rights abuses at the
cost of the victims of structural socio-economic injustice of apartheid
could not be justified. The Court understood the wide scope of the
amnesty provisions, which also covered state liability for criminal
acts, as recognition of this insight. It thus anticipated an inclusive
reparation policy on the part of the ANC government. The Court also
suggested that the future socio-economic rights jurisprudence,
anticipated by the inclusion of socio-economic rights in the
Constitution, should be approached as part of a more comprehensive
reparation or socio-reconstruction policy. Both the anticipated
executive and judicial policies on reparations have subsequently
failed to materialise. As Madlingozi argues, with some support from
Patrick Lenta in chapter 9, the absence of such a reparation policy has
rendered the reasoning in AZAPO, and thus the constitutional
legitimacy of the whole TRC process, suspect.
The issue of legitimacy is also a central concern of Nthabiseng
Mogale in chapter 8. Mogale suggests that AZAPO should be read as
the first socio-economic rights case of the Constitutional Court and
that the reparation policy of the government should be measured
against the same standard of inclusiveness as that laid down in the
Grootboom judgment. On this account alone the policy should be held
unconstitutional. Mogale appeals to the duty in international law to
prosecute perpetrators of human rights abuses to argue that AZAPO
represents nothing more than a political sacrifice of clearly
recognised constitutional rights. As such the judgment compromises
the very idea of and respect for the rule of law in the post-apartheid
state.
In the final chapter Patrick Lenta provides a comprehensive
overview of arguments against, and for, the broad amnesty provisions
of the TRC process. He takes a more positive view of the paradigm of
transitional or restorative justice than Madlingozi and Mogale. Lenta
argues that AZAPO should be re-read in the light of more recent
studies in transitional justice. Lenta's concern is to highlight the
pragmatic and jurisprudential advantages of a restorative justice
paradigm over a retributive justice paradigm. The socio-economic
implications of the restorative justice paradigm are not his chief
concern. Where he does respond to the question of reparations, he
concedes that the justification of the amnesty provisions in AZAPO has
been compromised by the failure of government to develop an
effective and comprehensive reparation policy. Lenta also deals with
the issue of international law and the difference between the
approaches in Makwanyane and AZAPO but, unlike Mogale and du
Plessis, he insists that the failure of the Court to engage with
 Introduction xiii

international law does not establish the duty to prosecute in

international law.
Lenta concludes his essay on a note which is perhaps appropriate
for the collection as a whole. Du Plessis explores the weaknesses of
AZAPO in chapter 4, but ultimately refuses to dismiss it as a failure or
mistake. Lenta explores the strong points of AZAPO in his defence of
the case, but ultimately refuses to describe it as a success. The
judgment is not perfect, he says, but to have expected a perfect
judgment in the circumstances would have been naïve, given the
complexity of the moral crisis caused by apartheid. This concession
about the limits of constitutional reasoning in post-apartheid society
is important and returns us to some of the concerns of earlier
chapters. Du Plessis, it will be recalled, understands AZAPO as a
reminder of how messy our past was, and how the very normativity of
law has become implicated in that mess. AZAPO can thus never
constitute a final or fully justified constitutional response to the past.
If this was not already clear from the outset, it has increasingly
become so over time, as the essays in this collection testify.
Snyman makes the same point in chapter 1. Given the nature of
our past, the dialogue about the clarity of past injustices and past
overcomings of these injustices is never closed, because the norm for
political behaviour can never be stated clearly enough. Snyman does
not restrict the validity of his statement to the exigencies of the
AZAPO judgment. The inability to achieve constitutional closure,
which is so dramatically illustrated by the AZAPO judgment, applies
equally also to all other post-apartheid constitutional judgments. Re-
reading AZAPO therefore becomes constantly re-reading and marking
the limits of all law.
 PART 1: MEMORY AND
LEGAL INTERPRETATION
 1 Thoughts on dealing with the
legacies of radically unjust political
behaviour

Johan Snyman

While the trial of the last remaining perpetrators of Auschwitz was

taking place in Frankfurt, and probably with Nietzsche’s Thus spoke
Zarathustra open next to his typewriter, Theodor Adorno wrote in the
mid-1960s in his Negative dialectics that ‘the need to lend a voice to
suffering is the precondition of all truth’.1 This statement is intended,
firstly, as a fierce criticism of modern society, as the many allusions
to Nietzschean phrases in this work testify, because ‘no universal
history leads from the untamable to humanity, but definitely one from
slingstone to megabomb’.2 Adorno is despairing of the results of
modern progress. Technological control of the world of nature and of
humankind has come at a distressingly high price. Modern,
bureaucratically controlled and economically, centrally co-ordinated
society has transformed human beings into social automatons, and has
subsequently become indifferent to humanity and humaneness.
Auschwitz, therefore, is for Adorno not a mere — and temporary —
‘industrial breakdown’ of modernity, but the most extreme form in
which modernity manifests itself, namely coldness as far as humanity
is concerned, or complete moral recklessness. If, after Auschwitz,
Adorno is almost literally stunned about the excess of evil in the
world, he declines to acquiesce in it. Against the hankering after
records and magnitude as an index of progress, Adorno opts for a
different yardstick. The truth about modern society is not to be
sought in an agreement between the aims of achievement and
supporting facts, but in the attention that is given to the
marginalised. That is why social truth involves the audibility of
suffering.
In one important respect Adorno yielded to his pessimism about
modernity. According to him, the voice of suffering could be heard, in
post-war (West) Germany, only in atonal music. In the public domain,
and in political decision-making processes, any mention of injustice
struck a discordant note and was therefore taboo. On this point
Adorno’s interpretation of dealing with the ‘German trauma’ is
debatable. It is quite possible that in the mid-1960s the Aufarbeitung

1
T Adorno Negative dialektik (1966) 27 (author’s translation).
2 Adorno (n 1 above) 312 (author’s translation).

3
4 Johan Snyman

der Vergangenheit (Adorno’s expression for ‘digging up the past’)3 did

not attain the momentum of the Historikerstreit (‘the historians’
debate’) of the 1980s.4 But in the sixties one could already point to
the (West) German Constitution and its Constitutional Court as a
significant means in which the experience and trauma of the Nazi era
had sedimented itself for the good. One may even say that a politics
of memory was founded by the (West) German Constitution. Many
guidelines about the good and proper conduct of and in the new
political dispensation were laid down with the specific intent to
prevent a recurrence of the inhumane practices of the Nazi era. The
new (West) German state admitted to the anti-normative conduct of
the previous regime and committed itself to reparations of the harm
that had been done, as well as to a critical vigilance over the new
dispensation in order to forestall any repetition, even by default, of
the transgressions of the past.
The Adenauer era committed these exalted aims to paper and
went on to rebuild (West) Germany and to transform it into the
Wirtschaftswunder — probably as a kind of collective psychological
compensation for the trauma of the war defeat and the suffering of
the majority of Germans. For the rest, the 12 years that the thousand-
year Third Reich lasted were absent from the history books in school
— until 1979. The telecast of the TV series, Holocaust, in (West)
Germany in January of that year was experienced by the generation
that was born after World War II as a profound shock, almost a
trauma. It afforded them, in graphic detail, information on and
interpretations of the nature of World War II that had initially,
although not officially, been suppressed.5 A new historical
consciousness — that had been in the making since 19686 — found its
own voice and culminated in the so-called historians’ debate in 1986.
The outcome of all this was a polarisation between so-called
apologetic (reactionary, neoconservative) and so-called critical
(deconstructionist) historians.7
But that was not the last word about the German past. Not only
was the book of the past reopened, but it was sublated — if I dare to
use the Hegelian term instead of the prosaic ‘raised’ — to a perpetual
open debate in which a plurality of (lesser) histories and (lesser) local

3 T Adorno Eingriffe. Neun kritische Modelle (1971) 125-146.

4
R Augstein et al Historiker-Streit. Die Dokumentation der Kontroverse um die
Einzigartigkeit der nationalsozialistischen Judenvernichtung (1987); J Habermas
Eine Art Schadensabwicklung (1987); H Hoffmann (ed) Gegen den Versuch,
Vergangenheit zu verbiegen (1987).
5
See H Lichtenstein & M Schmid-Ospach (eds) Holocaust: Briefe an den WDR
(1985); I Buruma Wages of guilt. Memories of war in Germany and Japan (1995)
6
See G Sereny The German trauma: Experiences and reflections, 1938-1999
(2001). Two novels cast interesting light on the response of Germans born after
World War II and who were in their late teens and early twenties in 1968: B
Schlink’s The Reader trans C Brown (1998) and U Timm’s Heisser Sommer (1998).
7 Habermas (n 4 above) 120-136.
 Chapter 1 5

perspectives have their legitimate say. Apparently there is consensus

that the one and only, universal and indubitable truth about the past
of the Third Reich may be posited as a perennial vexing question,
namely how was something like the Third Reich possible? Germans of
any persuasion, as well as Jewish and other European victims, and
their respective descendants, ought to discuss, analyse, debate and
judge this question to each other’s face and individual history on this
question. Through this dialogue a shared moral responsibility becomes
the order of the day. A public use of reason – as Kant recommended it
– restores participants in this dialogue to equal agents of a strategy to
contribute to a lasting commonwealth.8
Adorno’s requirement for the truth of a society was met in an
interesting way in Chile and the Argentine in the 1980s.9 The military
juntas that had governed those countries in the 1960s and 1970s had
exterminated all signs of opposition mercilessly. When these military
regimes were replaced by elected governments, many voices were
raised about the fate of people who had been branded as enemies of
the state by these former regimes and who had disappeared. (An
Argentinean and a Chilean air force officer later confessed to their
involvement in such disappearances. These people were abducted,
tortured, drugged and then, at night, dumped into the sea from aero-

8 Habermas (n 4 above) 137-148; J Rüsen ‘Die Zukunft der Vergangenheit’ (1998) 53

Universitas 228; J Rüsen (ed) Western historical thinking: an intercultural debate
(2002). Donald W Shriver records interesting attempts at this same kind of
experiment in the teaching of recent South African history. DW Shriver Jr Honest
patriots. Loving a country enough to remember its misdeeds (2005) 89-100.
9
There is a certain similarity between the Nazi era in Germany, the dictatorships in
South America and the apartheid system in South Africa, but also differences. In
all three instances governments monopolised the power of the organs of the state
(police, army, revenue) and controlled the media in order to neutralise or
severely harass and inhibit any form of opposition. The state ruled through terror,
and under a cloak of secrecy a silent war was waged against citizens of the state.
The rights of citizens against the state were more or less rendered null and void.
Together with absolutist views on state prerogatives and the use of state power,
racist policies connect Nazism and apartheid, although apartheid was not
exterminationist to the degree that Nazism was. The South American
dictatorships were not bent on maintaining racist policies, although in some
cases, like Guatamala, the mestizzo and Maya population took the brunt of the
regime of torture. The effect of the post-World War II international polarisation
between a capitalist West and a Communist bloc in the East also contributed to
the formation of police states in the West. The South American dictatorships, as
well as some African ones (Zaire), were backed by the USA through the CIA – as
‘bulwarks against Communism’. South Africa sometimes received covert support,
and was tolerated most of the time as far as its usability as a ‘bulwark against
Communism’ could be invoked, if this did not cost too much in terms of bloc
voting in the UN or in straight economic terms for countries involved in dealing
with South Africa. For an important overview of the development of international
law with regard to human rights and crimes against humanity, from the
Nuremburg trials to international treaties against genocide, apartheid and
torture, see G Robertson Crimes against humanity. The struggle for global justice
(2002). On the history of getting apartheid declared a crime against humanity, see
K Asmal et al Reconciliation through truth. A reckoning of apartheid’s criminal
governance (1997).
6 Johan Snyman

planes.) In both Chile and the Argentine truth commissions10 were

appointed to record the stories of such disappearances. Both truth
commissions reported the names of the perpetrators and in both
countries prosecutions were instituted with varying degrees of
success. The significance of these truth commissions is not necessarily
guaranteed by the success of the prosecutions, but, and there is wide
agreement on this, that formerly disparaged people were afforded
the opportunity to narrate, in public, their stories of inflicted
suffering. The public narration accorded them a social, political, legal
and moral recognition that was denied to them under the regime of
torture and disappearances.11 Because they had invoked the ire of the
incumbent powers, their neighbours thought them to be guilty of
something the authorities knew and knew about best, and that it was,
consequently, prudent to avoid any contact with them. The
disparaged citizens each had a history, and with that an identity.
Aryeh Neier, who through Human Rights Watch in New York was
intimately involved with the fate of families of the desapparicidos in
Chile and the Argentine, summarises the significance of giving a voice
to disparaged suffering thus:
Firstly, as a civilised society we must recognise the worth and dignity of
those victimised by abuses of the past. If we fail to confront what
happened to them, in a sense we argue that those people do not matter,
that only the future is of importance. We also perpetuate, even
compound, their victimisation.
The second reason has to do with establishing and upholding the rule of
law. It is important to send a message to the effect that everyone is
subject to the law. The rank and office of those who victimised others
must not be allowed to immunise or insulate them from society’s efforts
to confront the past.12
Tina Rosenberg, of the same organisation, joins in:
If ... the victims in a society do not feel that their suffering has been
acknowledged, then they are not ready to put the past behind them. If
they know that horrible crimes carried out in secret will always remain
buried, ... then they are not ready for reconciliation.13
These sentiments on dealing publicly with the legacies of a traumatic
past echo the activities of the first truth commission in South African

10
On truth commissions over the past three decades, see PB Hayner Unspeakable
truths. confronting state terror and atrocity (2001).
11 This is widely recognised and testified to as one of the, if not the most important,
results of truth commissions. See, for example, A Krog Country of my skull
(1998); A Boraine A country unmasked. Inside South Africa’s Truth and
Reconciliation Commission (2000) 98-144 & 340-378; Hayner (n 10 above) 24-29 &
133-140; V Sanford Buried secrets: Truth and human rights in Guatamala (2003)
207-212, 230-231 & 239-247.
12 A Boraine et al (eds) Dealing with the past. Truth and reconciliation in South
Africa (1994) 3.
13 Boraine (n 12 above) 67.
 Chapter 1 7

history in a most remarkable manner.14 I am referring to the work of

Emily Hobhouse, the British Whig woman who, in her private capacity,
gathered sworn statements about atrocities perpetrated against Boer
women and children during the Anglo Boer War of 1899 to 1902, and
had these published, first under the title of The brunt of war and
where it fell by the end of 1902 in Britain, and later as War without
glamour, or, women’s war experiences written by themselves, 1899 -
1902 in 1924. The point of her publishing the truth about the British
colonial war effort in South Africa was a moral one. She wanted
average British people to recognise and acknowledge humanity in
their ‘totally other’, the Boer. She mobilises ‘the universality and
similarity of experience’15 against the dumbing down of victims to a
‘speechless mass of confused suffering against a horrific
background’16 — a ‘self-deception’17 which renders the continuation
of war and its sorrows so frighteningly easy.
For too long now have historians extolled the glory of war and of
warriors and with only one or another general saying passed over the
burden of war and where it fell. It is very likely that modern historical
narratives are lacking in this respect even more than the old medieval
authors.18
It is this moral awareness about the use of power in history — that
no one wielding power in history ever can plead moral innocence —
which motivated her to say the following to a synod of the Dutch
Reformed Church in the Cape Province in 1903 (She connects her
argument to a recent revolt of Greeks against Turks in Macedonia.):
I learn that recently in London a meeting has been held to protest
against the atrocities of the Turks. To my mind that savours hypocrisy.
Are our hands clean?
It is true the Turks have burnt villages: but I have just come from seeing
village after village that we have burnt.
...
It is true that women and children have fled before Turkish troops, but
so also Boer women and children in their hundreds and thousands have
fled month after month and year after year before the British troops.

14
Because the institution, work and results of the Truth and Reconciliation
Commission in South Africa are well documented, and have been discussed and
assessed, and I assume all this to be fairly well known, I revert to a not so well-
known attempt at gathering truth about social trauma with a view to making it
public and, by making it public, mobilising international concern to effect redress
for victims and censure for the perpetrating state. This attempt was finally
vindicated by the development of the concept of crimes against humanity and the
various legal institutions and legal practices to which it gave rise. See Hayner (n
10 above) 206-212 & Robertson (n 9 above) 260-392.
15
E Hobhouse War without glamour, or, women’s war experiences written by
themselves, 1899 - 1902 (1924) 5.
16 E Hobhouse Die Smarte van die Oorlog en Wie Dit Gely Het (1923) xxii.
17
Hobhouse (n 16 above) xxi.
18 Hobhouse (n 16 above) xxi.
8 Johan Snyman

They too have been torn from their homes, yea, even from their very
beds, with infants newly born, in sickness, infirmity and age. Their babes
have been brought to birth in crowded railway trucks, in open wagons,
amid ruins and in mountain fastnesses. They have seen their children
perish in the camps from starvation and disease, and have so died
themselves.
Our nation allowed these deeds to pass unnoticed or but glossed them
over as ‘military necessities’. To point out, object or denounce was to
have the unscrupulous and libellous parts of the Press turned upon you.
But facts remain and as a nation we then lost our right to criticise similar
deeds, whether committed by Turks or others ... Can public injustices
and crimes be glossed over and pardoned? Must they not rather be
remembered so as to be rectified and so as to ensure that they never
should happen again?
To you, here assembled, I say these things because you have so much to
forgive ... So far as I know our deeds against your kinsfolk have never
even been confessed to by us as a people. Rather, they have been
condoned under high-sounding words, while the national indignation is
reserved for the Turks.
...
In the presence of these representatives here gathered from the whole
Colony I now assure you that we — viz. large sections of the British
people — deplore the past and have worked our hardest to limit the evils
and to ameliorate them. In their name and my own I crave your
forgiveness. No adequate reparation can we make; only — we should be
humbly grateful if you could accept as token of our sorrow and our
shame such small sacrifices as we here and there made.
‘Forgive and forget’ is the constant refrain of thoughtless writers in the
Official Press.
Forget you never can. These things are laid by as sacred memories in
your hearts. But — I ask it of you here and now — Forgive19 us if you
can.20
Over the past century shared experience and wisdom have been
gathered about truth and reconciliation in the political realm.
Although one may sometimes admit to Hegel’s cynicism about history,
namely that the only lesson that one can learn from history is that
nobody learns a lesson, one has to bear in mind that his cynicism may
only be true because some people with power forget so easily,
conveniently and emphatically. The politics of forgetfulness is cheap.
But victims do get it right sometimes. They do succeed in keeping a
politics of memory alive. The aftermath of the Holocaust led to a
groundswell of more creative and healing powers than it gets credit
for from politicians from discredited and dismantled regimes.
The Chilean and the Argentinean experiences, among many others
in the last decades of the twentieth century, testify to this, and it has
also been the experience of the South African Truth and
Reconciliation Commission. The majority of survivors and victims have
 Chapter 1 9

not spat hatred and revenge. They have wanted to know what exactly
happened to their loved ones; they have asked for a decent burial of
their loved ones, repair to a damaged house, or means to educate
their children. They have wanted, in the first place, to be enabled to
go on with what is left of their lives in the most meaningful fashion.
The search for the truth about the past of a radically unjust
society is not a search for the one and only set of so-called indubitable
and undisputed facts about events of yesteryear.21 It is much more a
search for the widest possible consensus about the minimum
legitimate norms for political behaviour. Whoever may be involved in
this kind of process is confronted by the following moral question:
How ought one to act politically responsibly? This question assumes
that there is no such thing as political innocence and political
immunity. This holds true for perpetrators of political torture, of
gross violations of human rights and of crimes against humanity. But
the progeny of violated people also has to face the legacy of radically
unjust pasts; immunity against the lure of political power is a
dangerous ruse. For that reason the atrocities of the past must be
remembered in all the vivid colours in which abuses of power are
cloaked. The dialogue about the clarity of past injustices and past
overcomings of these injustices is never closed because the norm for
political behaviour can never be stated clearly enough.

19
Acts of contrition, and how they ought to figure, if at all, are contested in recent
discussions on dealing with traumatic pasts, although the potency of their
symbolism, whenever they do occur, is well recognised. Of course, there are
people who resent such acts of contrition. They are, mostly, persons with a
vested interest in and connections to discredited regimes. One can single out the
impact of Willy Brandt’s kneeling before the Warsaw Ghetto Memorial (although
the Adenauer government had publicly accepted its inherited liabilities for the
actions of the Nazi regime and subsequently paid huge amounts of reparation to
Nazi victims and to the state of Israel), and Chilean President Aylwin’s public
apology to the families of desapparicidos after the publication of the report of
the Chilean truth commission, although it was not his government that had been
responsible for the gross violations of human rights. In South Africa, former state
president PW Botha vehemently declined to participate in any public act of
contrition, because, as he defiantly stated, ‘An Afrikaner doesn't go on his knees
before people, he does it before God.’ Krog (n 11 above) 266. Former state
president FW de Klerk apologised for the atrocities of apartheid on numerous
occasions, but in such heavily qualified terms, exonerating himself personally and
pleading ignorance of specific policies and commands, that his apology became
empty. That is why I invoke Emily Hobhouse’s example, especially in the South
African context — where, even today, white Afrikaners still ‘crave’ an act of
contrition by none other than the British monarch as the (symbolic) head of state.
See T Govier & W Verwoerd ‘The promise and pitfalls of apology’ in E Doxtader &
C Villa-Vicencio (eds) To repair the irreparable: Reparation and reconstruction in
South Africa (2004).
20 R van Reenen (ed) E Hobhouse Boer War letters (1984).
21 See the caveats Boraine analyses with regard to forensic and academic
rigorousness as far as the notion of truth is concerned in the workings of a truth
commission. Boraine (n 11 above) 11-75.
 2 Law’s time, particularity and
slowness

Karin van Marle

Begin to see
The questioning body of the snail
Has left. The shell
Moves on, into infinity,
by very slow degree.
— Petra Muller (2005) as quoted by Andries Gouws

Preface

Milan Kundera, in contemplating a question asked by his wife, namely

why people have no fear when they are behind the wheel, responds
as follows:
Maybe this: the man hunched over his motorcycle can focus only on the
present instant of his flight; he is caught in a fragment of time cut off
from both the past and the future; he is wrenched from the continuity of
time; he is outside time; in other words he is in a state of ecstasy. In that
state he is unaware of his age, his children, his worries, and he has no
fear, because the source of his fear is in the future, and a person freed
of the future has nothing to fear.1
He continues by naming speed the form of ecstasy of the technical
revolution and compares a technical, non-corporeal relation with
speed to the corporeal, embodied experience of a runner and her/his
relation to speed. Kundera then asks rather nostalgically, ‘Why has
the pleasure of slowness disappeared? Where have they gone, the
amblers of yesteryear?’2 Is the author mourning the loss of a world, of
an era, in which people consciously interacted with time, past and
future, in which they were concerned with memory and imagination?
In another context Kundera writes on ‘the appeal of time’ in the
novel as addressing not merely ‘personal memory’, but broadening
the idea of memory to become the ‘enigma of collective time’.3 He
fears that the novel as an art form will disappear in future because
the world has ‘grown alien to it’. Other appeals made by the novel, in
addition to the appeal of time, are ‘the appeal of play’, ‘the appeal

1 M Kundera Slowness (1996) 3-4.

2
Kundera (n 2 above) 4.
3 M Kundera The art of the novel (1988) 16.

11
12 Karin van Marle

of dream’ and the ‘the appeal of thought’. For Kundera the spirit of
the novel is the spirit of complexity and the spirit of continuity. It is
the spirit of complexity because the novel tells us that ‘[t]hings are
not as simple as you think’. It is the spirit of continuity because each
work answers preceding ones, maintaining a relationship between
past, present and future. However, for Kundera the spirit of our time
is alien to both these images. It regards the difficulty of knowing and
the elusiveness of truth inherent in the novel’s spirit of complexity as
cumbersome and useless. It rejects the spirit of continuity, because
the spirit of our time is firmly focused on a present that is so expansive
and profuse that it shoves the past off our horizon and reduces time to
the present moment only.4
Kundera also responds to an alliance only to the future and says:
Once upon a time I too thought that the future was the only competent
judge of our works and actions. Later on I understood that chasing after
the future is the worse conformism of all, a craven flattery of the
mighty.5
Then, to the question, what he is attached to if not the present or the
future, he answers, ‘I am attached to nothing but the depreciated
legacy of Cervantes.’6

1 Introduction

Kundera's reflection on time and his praise of slowness7 and memory

provide a good starting place for my own contemplation on the law
and legal interpretation and their relation with time. Like Kundera I
experience a discomfort with what Drucilla Cornell8 calls a
‘privileging of the present’ and support visions of a future, a not-
yetness that is never present, always postponed. But, again like
Kundera, I believe that, if the future is significant in the process of

4
Kundera (n 1 above) 18.
5 Kundera (n 1 above) 19-20.
6
Kundera (n 1 above) 20.
7
My gratitude to Bert van Roermund and Johan van der Walt for expressing their
views on the term ‘slowness’ as an accurate translation of Kundera and their
suggestions of ‘lingering’ or ‘dwelling’ as alternatives. The term ‘dwelling’ can of
course also refer to a place of dwelling, a domicile, but in this context it
indicates an attitude of lingering, of keeping one’s attention fixed upon a
subject. In a later research project I shall make the link between slowness and
the notion of attention or attentiveness as developed by Simone Weil explicit, but
I allude to the connection already in this article. An attitude of slowness or
lingering could enable law and legal procedure to be more attentive to particular
circumstances, less rule bound. This is elaborated on in IV below. See also n 12.
8 D Cornell The philosophy of the limit (1992) 116-154; ‘Autopoiesis, time,
indeterminacy. The relevance of time to the relationship between the philosophy
of the limit and systems theory’ (1992) 13 Cardoza Law Review 1579-1603. See
also C Larmore ‘Law, morality, and autopoiesis in Niklas Luhmann: Comment on
Drucilla Cornell's “Time, deconstruction, and the challenge to legal positivism:
The call for judicial responsibility”’ (1992) 13 Cardozo Law Review 1619-1624.
 Chapter 2 13

de-privileging the present, the past is as significant. Kundera's support

of slowness or lingering is not only a support of imagination and the
vision of the future. It is also a support of memory, a support of an
embodied and embedded recollection impossible in the flight of
speed. Memory, of course, like imagination is a construction and in
this sense the traditional concepts of linear and chronological time
are disrupted. Drucilla Cornell illustrates this paradox when she refers
to Charles Peirce’s concern with law and its relation with the past and
the future.9 Because we employ our past experiences when we
imagine and our imagination when we remember, the paradox of
imagining the past and remembering the future is created. Time,
memory and imagination accordingly become part of a more complex
configuration than a mere linear or chronological remembering or
projection. Cornell translates this paradox in the context of legal
interpretation to ‘legal interpretation as recollective imagination’.10
If notions of the future and the past are important in our
reflections on the relationship between law and time, another aspect
that is as significant and that flows right through our recollections and
imaginings is that which happens in a moment, the particularity of an
event that can so easily be ignored or forgotten. In the same way that
the law fails truly to recognise a remembering and imagining of the
past and future that challenges its institutional structure, it fails to
pay attention to and to recognise the particularity of an event and
reverts to generalisation and universal time. The concept of slowness
comes into play here also, because an attitude of slowness or lingering
is required to appreciate the particularity of an event.
In this article I compare law’s time and its effects on how we
understand and approach law and legal interpretation to another
concept of time. I explore two trends, one asking for a disruption of
a chronological and linear conception of time that could contribute to
an acceptance of the notion of multiple truths and fluidity of
meanings, and the other supporting the notion of slowness, where
difference and particularity can be explored and recognised in
contrast to law’s speed, universalisation and generalisation.11

9
D Cornell Transformations (1993) 23-44. See also Cornell (n 8 above).
10 Cornell (n 9 above) 23.
11
This article falls within a broader framework of the search for a postmodern ethic
and an investigation of the question posed by C Douzinas & R Warrington ‘A well-
founded fear of justice: Law and ethics in postmodernity’ in J Leonard (ed) Legal
studies as cultural studies (1995) 197-229: ‘Can there be a postmodern ethics
that while accepting the pragmatic, epistemological and ontological critiques of
modern moral philosophy, is not condemned to cynicism or passivity?’ See also E
Levinas Otherwise than being (1981); S Hand (ed) The Levinas reader (1981);
Ethics and infinity (1985);C Douzinas & R Warrington Postmodern jurisprudence:
The law of text in the texts of law (1991); C Douzinas & L Nead Law and the
image: The authority of art and the aesthetics of law (1999); P Fitzpatrick
Modernism and the grounds of law (2001).
14 Karin van Marle

I shall contemplate how events and interpretations of art can

illustrate a way of disrupting chronological time, and by lingering,
show greater attentiveness.12 By supporting a disrupture of
chronological time and by suggesting an approach of slowness that
could involve greater attentiveness I am not advancing a new
‘method’ of legal interpretation.13 I am investigating and tentatively
suggesting other ways of or attitudes to legal reading and
interpretation, always keeping the limits and the violence of the law
in mind — the limits of the law refer to law’s incapacity to encompass
politics, ethics and justice; the violence — and reductive nature —
refers to law’s tendency to make the particular general and the
concrete abstract. Law, because of it rule-bound nature, and
judgments, because of the overemphasis on calculation, exclude the
needs of the particular and, following Douzinas and Warrington’s
employment of Kafka, ‘closes the door of the law’.14
Time, and in particular the construction of memory, has become
an important point of interest and discussion in South Africa. The
event of the Truth and Reconciliation Commission (TRC) illuminated
law's inability to encompass disruptions of linear and chronological
time and, as has been pointed out and elaborated on quite
eloquently, law's incapacity to relate to memory.15 After briefly
revisiting the TRC as an example of law’s incapacities in relation to

12 Simone Weil argued for attention as a moral value. Ethics of care feminists, like
Joan Tronto, have followed Weil’s argument by developing the notion of
attentiveness further. See J Tronto Moral boundaries. A political argument for an
ethic of care (1993). My gratitude to Emilios Christodoulidis and Zenon Bankowski
for directing me to Weil’s work and for pointing out the link between my use of
slowness and the notion of attention. Weil’s work on attention has been
compared to Hannah Arendt, Martha Nussbaum and Iris Murdoch. In current
research I take the notion of attentiveness further and also compare it to the
work of poet and author Antjie Krog and artist William Kentridge.
13
Alan Hunt explained his favouring of the notion of an approach rather than a
method as follows: ‘It should be noted that I employ the idea of “approach”
rather than “method” because the latter carries with it the implication that it is
both possible and desirable to stipulate general procedural rules for the conduct
of inquiries. The search for an “approach” is intentionally agnostic concerning the
possibility and desirability of prescriptive methodologies.’ A Hunt ‘The critique of
law: What is “critical” about Critical Legal Theory?’ in P Fitzpatrick & A Hunt
(eds) Critical Legal Studies (1987) 13.
14 Tronto (n 12 above) 223. ‘But in immediately identifying justice with court
procedure, the Court, like Kafka’s doorkeeper, shuts the door.
Before the door stands a door-keeper. A man from the country comes up to this
door-keeper and begs for admission to the Law. But the door-keeper tells him that
he cannot grant him admission now. The man ponders this and then asks if he will
be allowed to enter later. “Possibly” the door-keeper says, “but not now.”
After waiting for many years, the man eventually asks the doorkeeper why no one
else has asked to enter. The doorkeeper answers that no one else could gain
admission through the door, because the door was intended only for him. He
continues to say: ‘I shall now go and close it’.
15
See EA Christodoulidis ‘Law's immemorial’ in EA Christodoulidis & S Veitch (eds)
Lethe's law (2001) 207-227. See also EA Christodoulidis ‘Truth and reconciliation
as risks’ (2000) 9 Social & Legal Studies 179-204 and ‘The irrationality of merciful
legal judgement: Exclusionary reasoning and the question of the particular’
(1999) 18 Law and philosophy 215-241.
 Chapter 2 15

time, I turn to events in art that involved a remembrance of the past

and future. In these art events and the comments on them we find a
notion of attentiveness that I want to translate to an approach to be
considered for the purposes of law and legal interpretation. I argue
for an approach towards legal interpretation that could embrace a
slowness, or what Samuel Ijsseling calls a ‘strategy of delay’. My
support for the notion of delay when interpreting is an attempt to
escape some of the reductive and limited features of the law as
referred to above. It is a call for a greater attentiveness in the face
of the violence that is brought into institutionalised legal readings and
interpretations. Antjie Krog’s telling of the shepherd Lekotse’s tale
and how the TRC’s institutionalised process of interrogation failed to
address his concerns as well as the case of the Tamil asylum seekers,
which I turn to at the end, show the limits of speedy institutionalised
and legalised processes.16 It shows that for justice we shall have to
wait, that the search and concern with justice needs a slowness, an
approach of attentiveness.
The concern with slowness and attentiveness as a way of taking
greater care with particularity, of trying to widen the limits of law’s
generality, should not be seen as another attempt to deny or negate
the violence of the law, to forget its force as Douzinas and Warrington
claim the ‘recent turn to hermeneutics, semiotics and literary theory’
has done.17 The brief turn to the TRC and the recalling of the story of
the shepherd are examples illustrating the limits of the law and the
postponement of justice. The turn to the art events illustrates how art
could be more ‘successful’ in its interaction with memory,
reconciliation, and transformation and reconstruction. The search for
a slowness, or a delay in interpretation, does not claim to find a final
and encompassing justice. Realising that law is not law because it is
just, but that it is just because it is the law, highlights our ethical
responsibility.18 ‘Without the safe anchorage of a concept and
without law, postmodern ethics is left with responsibility — indeed
with a responsibility for the responsibility created by the suffering of
my neighbour.’19

2 Law’s limits

In this section I briefly revisit the event of the South African Truth and
Reconciliation Commission to show the gap between law (and legal
institutions) and politics, reconciliation and ultimately justice as put
forward also by Antjie Krog and Emilios Christodoulidis. A paradox of

16 A Krog Country of my skull (1998) 210-217.

17 Krog (n 16 above) 197.
18
Douzinas & Warrington (1995) (n 11 above) 198.
19 Douzinas & Warrington (1995) (n 11 above) 204.
16 Karin van Marle

the tension between failure and success is raised — in its failure to

reconcile a nation, the Commission perhaps, albeit unintentionally,
highlighted the critical insight of law’s limits.
As part of South Africa's negotiated settlement, parties agreed on
the institution of a Truth and Reconciliation Commission. The
postamble of the interim Constitution laid the foundations of the TRC:
The adoption of this Constitution lays the secure foundation for the
people of South Africa to transcend the divisions and strife of the past,
which generated gross violations of human rights, the transgression of
humanitarian principles in violent conflicts and a legacy of hatred, fear,
guilt and revenge. These can now be addressed on the basis that there is
a need for understanding but not vengeance, a need for reparation but
not retaliation, a need for ubuntu but not for victimisation.20
As Antjie Krog21 notes, these words, which aim to formulate a vision
of justice for South Africa, stand in contrast to the following
paragraph in which the amnesty process, one of the institutional
outcomes of the TRC, is envisioned:
In order to advance such reconciliation and reconstruction, amnesty
shall be granted in respect of acts, omissions and offences associated
with political objectives and committed in the course of the conflicts of
the past. To this end, Parliament under this Constitution shall adopt a
law determining a firm cut off date (which shall be a date after October
8 1990 and before 6 December 1993) and providing for mechanisms,
criteria and procedures, including tribunals, if any, through which such
amnesty shall be dealt with at any time after the law has been passed.22
Krog criticises the amnesty process for its overemphasis on
judicialised procedures and particularly the fact that judicialised
outcomes were favoured above ‘moral’ or ‘political’ outcomes. For
her the main problem lies in the character of the Amnesty Committee
and the legislation establishing it. The members of the Amnesty
Committee were never part of the TRC and accordingly were never
part of the general ‘life and times’ of the Commission. They did not
share in any of the decision making, were not present at TRC
meetings, and were not part of debates and arguments. As the
Amnesty Committee they had to be completely ‘independent’. The
legalised and judicialised nature of the Amnesty Committee
prevented it from focusing on the goals of reconciliation and healing.
An obvious feature of the amnesty process involving time is that
certain fixed time frames were created and, if an individual's case fell

20 Constitution of the Republic of South Africa, Act 200 of 1993 (interim

Constitution).
21 Unpublished paper delivered at conference presented by the Institute for Justice
and Reconciliation ‘After amnesty? Restorative justice, prosecutions and nation-
building’. See also Krog (n 16 above) in general.
22 Constitution of the Republic of South Africa, Act 108 of 1993, Postamble.
 Chapter 2 17

outside the scope of the time frame, there was no institutional path
to follow.23 This indicates the obsession with linear and chronological
time, and accordingly a rigid approach to the events and, more
importantly, to the various versions, particular experiences and
tellings of the events.
Even though the human rights violation hearings, one of the other
institutional legs of the TRC, can also be criticised on many levels, for
some individuals the simple process of telling their stories and finding
out what had happened to loved ones provided momentary relief after
years of suffering and not knowing, quite apart from any clear,
judicialised outcome. Commenting on the limits of the law,
Christodoulidis24 argues that the TRC failed in its attempt to
‘reconcile within itself its dual nature as legal tribunal and public
confessional’. He continues: ‘[L]aw in every dimension always-
already defines away the risk that is at the heart of reconciliation.’
Law and legal systems are too limited to realise the ideal of
reconciliation. In the South African context he argues the TRC put
reconciliation and restoration in a paradox, ‘at once “not-yet” and
yet “always-already”’.25 The legalised nature of the TRC had the
effect of reduction instead of reflexivity, of relying on a legal a priori
instead of taking a risk. He also notes that the TRC failed to ‘re-cast’
the past in view of a ‘re-orientation’ to a future community and to
establish a common ‘we’. It failed to ‘re-write collected memories as
collective memory’.26
This failure to my mind could also be read, quite paradoxically, as
a positive outcome of the TRC. In this failure the TRC succeeded in
exposing the plurality and multiplicity of stories, memories and
imaginations, of pasts and futures. Another successful outcome of the
TRC is its quite unintended re-exposure of the limits of the law, of
law's incapacity to contain politics, the ethical and justice. It’s very
failure to adequately take account of politics, the ethical and justice
effectively exposed the inability of law and any legal institution to do
so.

3 Art’s possibilities

In this section a few events in art are highlighted. My intention is not

to enter into an in-depth analysis of the art images themselves, but
to compare them to the limits and reductions encountered in law in
general and also in the proceedings of the TRC as discussed above.

23 Similarly the reconstruction that the Commission for the Restitution of Land
Rights aims to achieve is bound by a certain fixed time frame.
24 Christodoulidis (2000) (n 15 above) 183.
25 Christodoulidis (2000) (n 15 above) 200.
26
Christodoulidis (2000) (n 15 above) 201.See also ‘Law, love and the contestability
of European community’ in H Petersen (ed) Love and law in Europe (1998) 52-61.
18 Karin van Marle

First, we turn to an example of an archaeological investigation in

which two contrasting approaches to time and memory, but also to
life, are described. The one approach is abstract and occupied with
chronological and linear approaches to time and memory. The other
approach is concerned with material objects and a materialist
approach to memory in which linear and chronological time are not
significant. The latter is an approach that I perceive to be connected
with slowness, lingering and greater attention. These two approaches
connect with the distinction initially made by Johan Snyman between
monument and memorial and which is further elaborated on in a
discourse on monumental and memorial constitutionalism by Lourens
du Plessis on the constitution as monument and the constitution as
memorial.27 Secondly, a short story in which the main character
followed an embedded approach to time and particularity is recalled
and contrasted to law’s belief that such particularity is irrelevant to
the fulfilment of its instrumental task.28 Thirdly, we look at the
portrayal of memory in an animated film and how it disrupts and
problematises conventional approaches, and how, in this instance,
the artist himself resists easy, quick solutions and interpretations of
his work. Connected to this I also refer to another artwork by the
same artist that repeats previous concerns with light, darkness,
memory and slow reflection.
In an article on ‘archaeology as memory’, Martin Hall captures
two accounts of memory — one in which memory is merely reflected
in language and one in which memory is interconnected with the
material world.29 He focuses on philologist William Bleek, who was
preoccupied with the ‘Bushman’ languages of southern Africa and who
believed that ‘language was the key to all human history and
society’.30 The context of Hall's investigation was a 1996 exhibition
called ‘Miscast’ that re-opened the themes of the re-creation of
memory, of new ‘imagined communities’ and of how words and
objects come to mean such different things to different people. Hall
notes the difference between Bleek and Kabbo, a Bushman captured
by Bleek as informant, in their relations to language. For Bleek
language is everything, but for Kabbo the material elements of the
everyday world cannot be reduced to language alone. Against this
background Hall imagines the different reactions by Bleek and Kabbo

27
J Snyman ‘Interpretation and the politics of memory’ (1998) Acta Juridica 312;
LM du Plessis ‘The South African Constitution as memory and promise’ (2000) 11
Stellenbosch Law Review 385; K van Marle ‘Lives of action, thinking and revolt —
A feminist call for politics and becoming in post-apartheid South Africa’ (2004) 19
SA Publiekreg/ Public Law 605 and ‘Constitution as archive’ in S Veitch (ed)
(2006) Law and the politics of reconciliation 215-228.
28
OW Holmes ‘The path of the law’ (1897) 10 Harvard Law Review (reprint) (1997)
110 991.
29 M Hall ‘Earth and stone: Archaeology as memory’ in S Nuttal & C Coetzee (eds)
Negotiating the past. The making of memory in South Africa (1998) 180-200.
30 Hall (n 29 above) 183.
 Chapter 2 19

to the concept of monument. For Bleek, a monument, like language,

will signify timelessness, the eternalisation of a moment, holding time
still. Kabbo, because of his material culture, will accept that things
can mean different things to different people at the same time,
similar to the meanings of words that are also negotiated as a part of
a process.31
Two ways of contemplating time and memory come to the fore
from this example, one in which ‘time lies in memory’ and one in
which ‘memory is constituted in time’. In the former, objects
themselves constitute time and as a result the distinction between
subject and object becomes blurred. In the latter, time is measured
on a calibrated scale of days, months and years. Monuments claim
eternity by seizing moments and holding them still and this claim of
timelessness permits the fantasy of eternal repetition and
distinguishes between subject and object.32
A similar distinction is made regarding landscape. On the one hand
landscape is ‘a way of seeing’ in which individuals have ‘represented
to themselves and the others the world about them and their
relationship with it’. On the other hand ‘[M]aterial objects can be
seen as both within, and defining time and space, and as playing
between past and present, constantly defining and redefining
memory.’33 Hall notes that recent theories on landscape have also
highlighted its contingency — landscape viewed as constructed rather
than as universal:
Kabbo can be seen to have constructed landscape within a different
cosmology — a non-Albertinian system of time and space that
nevertheless evokes memory by assembling objects which have
multiplicities of meanings and associations.34
A distinction made by Barbara Bender between capitalist and non-
capitalist notions of landscape is recalled: Bender contrasts the
capitalist understanding of ‘landscapes of memory’ (social and
cultural relations are read as inscriptions) and the non-capitalist
understanding of ‘landscapes as memory’ (social and cultural
processes are made visual as they are enacted).35 Hall describes the
aim of the ‘Miscast’ exhibition as to prevent closure on a chapter of
history and to contest the way in which mainstream institutions tend
to forget the iniquities of the past. In this sense this exhibition, in its
relationship to memory and recollection, was more true to the notion
of risk and more open to the possibility of reflexive politics. The
centrality of materiality in the construction of memory and the act of
recollection connects with Kundera's comments on the motorcyclist —

31
Hall (n 29 above) 189.
32 Hall (n 29 above) 193.
33 As above.
34
Hall (n 29 above) 195.
35 L Bender (ed) Landscape: Politics and perspectives (1993) 11; As above.
20 Karin van Marle

he who tries to escape the materiality, the embodiedness and

embeddedness of time and reconciliation.
My argument is that with a material recollection goes a greater
openness towards the particular and that this is necessarily associated
with slowness — it takes more time to reflect on and be attentive to
material circumstances than merely to follow or apply a rule, to
consider an issue in a linear chronological, abstract and mostly
predictable manner.
The same notion of material recollection plays out elsewhere. In
a short story by Paul Auster, one of the characters, Auggie Wren,
shows the photos that he had been taking for the past 12 years every
day on the same street corner at precisely seven o'clock of precisely
the same view to the author.36 At first the author finds the project
odd. He pages rather hurriedly through the album until Auggie tells
him, ‘You're going too fast. You'll never get it if you don't slow down.’
The author then realises, ‘If you don't take time to look, you'll never
manage to see anything.’ As he continues to page through the albums
he starts to pay closer attention to details, taking note of the changes
in the weather, the changing angles of light as the seasons advanced,
the subtle differences in the flow of traffic, the changing rhythm of
the different days. He starts recognising the faces of the people, ‘the
same people in the same spot every morning, living an instant of their
lives in the field of Auggie's camera’.37 The author then realises that
Auggie is ‘photographing time ... both natural time and human
time’.38 This theme is also found in one of Auster’s novels, Leviathan,
where he bases one of his characters on the life of French
photographer Sophie Calle, who, in her work, focuses on the
particular moments and events of daily life.39
The attention to detail and focus evident in Auster’s work stands
in contrast to how law addresses individual life and accordingly time.
As Oliver Wendel Holmes wrote:
The process is one, from a lawyer's statement of a case, eliminating as it
does all the dramatic elements with which his client's story has clothed
it, and retaining only the facts of legal import, up to the final analyses
and abstract universals of theoretic jurisprudence. The reason why a
lawyer does not mention that his client wore a white hat when he made

36
P Auster ‘Auggie Wren’s Christmas story’ in Smoke and blue in the face: Two films
(1995) 151-156. Auster comments as follows on a compilation of stories edited by
him that came about through the National Story Project. People were invited to
contribute stories about their lives and experiences: ‘People would be exploring
their lives and experiences, but at the same time they would be part of a
collective effort, something bigger than just themselves. With their help, I said, I
was hoping to put together an archive of facts, a museum of American reality.’ P
Auster (ed) True tales of America life (2001) xvi.
37 Auster (1995) (n 36 above) 152.
38
As above.
39 P Auster Leviathan (1992); S Calle Double game (2001).
 Chapter 2 21

a contract, while Mrs Quickly would be sure to dwell upon it along with
the parcel gilt goblet and the sea-coal fire, is that he foresees that the
public force will act in the same way whatever his client had upon his
head.40
In Holmes’ vision, law, in contrast to the art discussed above,
consciously refrains from considering detail and particularity.
Another example of art in which a negotiation of time and memory
is to be found is the animated film by William Kentridge, History of
the main complaint, in which the body of the protagonist is the
vehicle of memory. Michael Godby41 notes how historians in recent
years have begun to use the literary form of multiple narratives to
present a narrative fragment instead of a single authoritative point of
view. The medium of film is a particularly good way to relativise past
experiences by, for example, flashbacks and cross-cutting and to
deconstruct notions of objectivity and truth. Godby notes that
‘history is committed to the past and all the new rhetorical devices
are focused on it’, but that in an artwork these strategies are turned
on the spectator, with the effect that history need not be understood
for its own sake — rather the relationship between the individual and
the past is what matters.42 According to him, in an artwork like a film
the spectator can become part of the text in a way that is not possible
with a historical text, and quite obviously with a legal text or with any
legalised form of inquiry. Where the idea of truth in history or law will
always remain attached to the object of study, in a film like the one
by Kentridge the film itself becomes the medium of memory that
connects the spectator to the past.
Godby highlights how the conception of time is problematised in
History of the main complaint. The fracturing of time in the film can
be seen as a representation of ‘subjective experience and the uneven
process of memory’ in contrast to a ‘shared sense of reality’ proposed
by the TRC, for example. The wide use of fantasy gives space to the
spectator's imagination and contributes to the notion of fluidity and
contingency. The film calls for memory in contrast to forgetting
because it is through memory that an individual can acknowledge her
part or involvement in the past. Memory in this instance is not a
forced, fixed and closed construction imposed by the ideal of creating
a new community.
At the end of the article the author comes to the conclusion that
Kentridge’s representation of memory ‘allows, or rather demands,
that each person acknowledge his or her involvement in the violence
of the past’ and that ‘the mundane image of the car journey

40 Holmes (n 28 above).
41 M Godby ‘Memory and history in William Kentridge's History of the main
complaint’ in S Nuttal & C Coetzee (n 29 above) 100-111.
42 As above.
22 Karin van Marle

represents the collective experience of apartheid’; ‘the

representation of injury in the mute form of the driver’s body allows
each witness gradually to discover the extent of his or her own
hurt.’43 To my mind this might be a somewhat moralising and too
fixed an interpretation that goes against the author’s own initial
analysis of the medium of film. We turn to art in order to ‘escape’ the
limits of the law and its inability to deal with trauma, ‘contestation',
‘risk’, and the ethical. Art constructs, reconstructs and deconstructs
simultaneously and continuously for this context, because it disrupts
time and the imposed forms of reconciliation created by law and legal
institutions. JM Coetzee describes the Kentridge film series as a
constitution of a ‘yet-to-be-completed investigation into the
troubled, amnesiac white South African psyche’.44 For Coetzee the
full meaning of History of the main complaint emerges only in the
context of the whole Soho Eckstein series of which it is a part. He
refers, for example, to Felix in exile, of which the conceptual basis is
‘an analogy between landscape and mind ... Landscape hides its
historical past from the eye; similarly, the mind projects its
equanimity by forgetting or repressing what it does not wish to
remember.’45 Coetzee notes that the exploration of memory that
Soho has undertaken is incomplete and false and has not revealed any
truth about his complaint. Explorations will have to continue.46
Kentridge himself has said: ‘I hate the idea that my work has a clear,
moral high ground from which it judges and surveys. To put it blandly,
my work is about a process of drawing that tries to find a way through
the space between what we know and what we see.’47
During 2006 William Kentridge’s latest exhibition, Black Box,
opened at the Johannesburg Art Gallery. In this work Kentridge
continues the themes of interrogation of the past, memory and
contingency so aptly illuminated in his previous works. In Black Box,
a work created for Guggenheim Berlin, Kentridge remembers the
brutal murder in Namibia of the Herero population by the Germans
during the early twentieth century. In a reflection on Black Box,
Kentridge notes the significance of light and darkness and the nature
of shadows for the work.48 He describes light as an infinite series of
projections aimed towards us, the sun as an infinitely promiscuous
source and draws attention to shadows and how shadows make us
conscious of seeing.49 He is interested in the nature of the meeting

43
Godby (n 41 above) 111.
44 D Cameron et al William Kentridge (1999) 93.
45
Cameron et al (n 44 above) 84.
46 Cameron et al (n 44 above) 93.
47 Cameron et al (n 44 above) 33.
48
W Kentridge Black Box/ Chambre Noir (2005) 43.
49 As above.
 Chapter 2 23

point between projection and reception, which is not only important

for looking but also for how we experience the world.50
The project before Black Box was the staging of Mozart’s opera
The magic flute, a story of the Enlightenment in which the young
prince Tamino is told by the Queen of the Night to rescue her
daughter, Pamina, who was abducted by Sarastro. The Queen of the
Night, of darkness, is contrasted to Sarastro as bearer of the light.
Significant about the story is that the young princess was abducted by
Sarastro with force. Kentridge notes that the Berlin Conference took
place not long after the writing of Mozart’s opera and marked the
beginning of colonialism as a project of the Enlightenment that
brought the light of the Western world with force to the African
continent.51 He recalls Plato’s cave story — how the prisoners in the
cave had to be brought to light by force to learn the truth. Similarly,
in The magic flute, coercion is tightly connected with the ideal of
light and Enlightenment.52
Kentridge repeats his interest in shadows and argues that the
extraordinary violence of colonialism as an Enlightenment project can
be illuminated by looking at the shadows. Related to his interest in
shadows he refers to the well-known habit of children playing games
with shadows by making animal shapes with their hands. He captures
the experience of knowing that the shapes are mere shadows while
wanting to believe that they are real as the ‘willing suspension of
disbelief’.53 I am interested in this phrase — to what extent do we
suspend our disbelief in service of some ideal of truth and
reconciliation, transformative constitutionalism, constitutional
sovereignty?
Kentridge indicates three possible meanings of Black Box that
could all be significant for interpreting the work: In the first place
Black Box refers to the theatre and the performance on a stage. A
second association is with the lens of a camera — the central chamber
of a camera between the lens and the eyepiece into which light enters
and in which infinite possibilities of the outside world are possible
until one single image is chosen when the photo is taken. A third
reference is to a flight data recorder that is used to record the events
in an aircraft cockpit, especially those that precede an airline
disaster.54
I am interested in Kentridge’s use of Black Box and the three
associations as metaphors for the project of reconciliation and
constitutional sovereignty in post-apartheid South Africa.

50
Kentridge (n 48 above) 45.
51 Kentridge (n 48 above) 45-49.
52 As above.
53
Kentridge (n 48 above) 47.
54 Kentridge (n 48 above) 51.
24 Karin van Marle

Constitutionalism as performance is a familiar link. It also connects

with the notions of a monumental understanding of language and
memory discussed previously. However, the second meaning is also as
true to the experience of interpretation — with every legal decision
there are infinite possibilities, but only one is always chosen to the
exclusion of all others. Even though aspirations towards trans-
formative constitutionalism or engagements with the memorial might
lean towards something more, ultimately we end up with one version.
The third possible meaning is perhaps the most haunting — the
aspirations for reconciliation and constitutional sovereignty become
merely a recording of events before disaster strikes. For Kentridge,
The magic flute represents the utopian end of the Enlightenment,
while the Black Box is at the other end of the spectrum. Which end of
the spectrum does the endeavour of reconciliation and constitutional
sovereignty represent in post-apartheid South Africa?
Looking back at the AZAPO judgment forces us to confront issues
around reconciliation, reparation and law’s function concerning these
issues. Legal memory and how we remember will affect our present
and future. The law’s precarious relation to memory, remembering
and forgetting are central to all the contributions in this volume.
Kentridge’s reflection on light and shadow, like his previous
reflections on indeterminacy and contingency, discloses other paths
of reflecting on legal memory. The AZAPO judgment and the event of
the Truth and Reconciliation Commission and their role in
reconstructing and repairing South African society could be linked
with performance, the reification of one in contrast to many and the
recording of disaster symbolised by Black Box. Like his exposure of
capitalism and big business in the Eckstein film series, his exposure of
colonialism as an Enlightenment project in Black Box serves as a
reminder of Western complicity concerning problems confronting the
contemporary world. As before, it is Kentridge’s slow reflection, his
attentiveness to the particular that confronts the forceful generality
of law that complicates the call for memory and ultimately the call
for justice.
To summarise the argument so far: Law, in its relation to time, to
the past, the future and the particularity of the moment or the event,
fails to follow an approach other than that which its institutional form
necessitates. The South African Truth and Reconciliation Commission
is one example of an event that exposed these limits and failures. The
examples of art and their relation to and interaction with time,
memory and the imagination show a more open and fluid way of
contemplating time and illustrate the significance of slowness as a
way of interacting with daily life, past, present and future. We shall
now consider some possible implications of these approaches for
reconfiguring legal interpretation.
 Chapter 2 25

4 Legal interpretation as a strategy of delay and

justice as limit

Following from the contemplations on time, memory and particularity

above, I support a deconstructive approach to interpreting legal
texts. My aim here is not to elaborate on the philosophy of
deconstruction, but to highlight the time aspect inherent in
deconstruction and to show how a deconstructive approach to legal
interpretation can follow — similar to the readings of the art events
above — a more open and fluid reading that is attentive to difference
and particularity. A deconstructive approach embraces both a
disruption of chronological time — and accordingly multiple notions of
truth and fluidity of meanings — and a slowness or dwelling (strategy
of delay). The ethical aim of such an approach is not to deny the
reductiveness and the limits of the law, but rather to expose the
violence inherent in institutional and legalistic approaches.
For Samuel Ijjsseling,55 deconstruction draws our attention to the
‘unsaid’, to the open spaces in a text. It also problematises context
in the sense that context56 can never be comprehended fully, or
closed off. Related to context is the notion of the ambiguity and
fluidity of meaning. Words have different meanings in different
contexts. Furthermore, differences themselves and differential
treatment also have different meanings and effects in various
contexts. To give attention to these differences deconstruction thus
presupposes a delay in reading a text, a delay that highlights the
ethical imperative of deconstruction. To interpret a text means to
judge. Inherent to judging is responsibility. Responsibility is captured
by an inescapable double bind — although we know that we must
interpret the text, we realise the impossibility of full comprehension
or final interpretation. A strategy of delay takes notice of that which
cannot be known, that which escapes interpretation. It focuses on
that which cannot be systematised, predicted and foreseen.
Cornell57 renames deconstruction to ‘the philosophy of the limit’.
The significance of this renaming is to emphasise the understanding
of justice as the limit to any system of positive law. In other words
that means that it is impossible to capture justice within a system.
John Caputo,58 repeating the words of Aristotle that ‘life is hard’,
pleads for a reading of life that could restore difficulty. The essence

55
‘Jacques Derrida: Een strategie van de vertraging’ in GAM Widdershoven & TH De
Boer (eds) Hermeneutiek in discussie (1990) 9-15. See also S Ijjseling ‘Derrida
over teksts en conteksts’ in PH Van Hauten & S Ijjseling (eds) Deconstructie en
ethiek (1992) 9-28.
56 See also M Minow & E Spellman ‘In context’ (1990) 63 Southern California Law
Review 1597.
57
Cornell (n 8 above) in general. See also Cornell (n 9 above), in general.
58 J Caputo Radical hermeneutics (1987) 1.
26 Karin van Marle

of reading and interpretation must be to create an opening, not to

find a resolution. This, however, is not an exercise in nihilism. A
deconstructive reading, by following a strategy of delay, exposes the
difficulty of interpretation, but does not make it impossible. It
exposes the limit of justice, but does not deny justice. On the
contrary, deconstruction insists on the ideal of justice.
Derrida59 distinguishes between law and justice by applying the
possibility of deconstruction — where justice is undeconstructable,
the law can always be deconstructed. For Derrida justice is more than
distributive justice or to have respect for the other as a human
subject in the traditional sense of the word. Justice is the experience
of the other as other. Derrida observes that the law can always be
improved. Laws can be replaced by better ones, constitutions can be
written and institutions created. Each time one legal system is
replaced by another, it is a kind of deconstruction. The fact that the
law can be deconstructed is a condition for historicity, revolution,
morals, ethics and progress. Justice is what gives the impulse and the
movement to improve the law. The law can be calculated — for
example, a judge can see whether a person has obeyed a certain rule
or not. Justice is not only a matter of knowledge or theoretical
judgment. A judge must calculate, but a judge must also reinvent and
not simply apply the law as a coded programme or test to a given
case. However, the call for justice is never fully answered. A
deconstructive reading, interpretation and approach exposes that
there is a point, a limit beyond which calculation must fail. In other
words, a deconstructive approach exposes the limits of the law.
However, by following a deconstructive approach — as Ijjsseling will
have it, a ‘strategy of delay’, or in my formulation, a slowness,
attention to particularity — a certain ethical recognition is given.

5 Two examples

In this section I recall a specific example from the TRC process

recounted by Krog where the legally institutionalised manner of the
process failed to address, to listen and to be open to the story itself
and also to the way of recalling of the shepherd, Lekotse. Another
example is taken from Douzinas and Warrington’s reflection on a case
of Tamils seeking asylum in Britain in which the ‘door of the law’ was
literally and figuratively closed for the refugees by the House of
Lord’s emphasis on ‘objectivity’.60

59 J Derrida ‘Force of law: The “mystical foundation of authority”’ in D Cornell (ed)

Deconstruction and the possibility of justice (1992) 3-67. See also J Derrida
‘Declarations of independence’ (1986) 15 New Political Science 7-15 and ‘The
deconstruction of actuality. An interview with Jacques Derrida’ (1994) 68 Radical
Philosophy 28-41.
60 Douzinas & Warrington (1995) (n 11 above) 204-218.
 Chapter 2 27

By repeating the tale of Lekotse, the shepherd, Antjie Krog61

exposes the failure of the institutionalised process followed by the
TRC to recognise a construction of memory other than a simplified,
chronological, linear recollection. Lekotse attempted to tell the TRC
how his family had been affected since the day when the police came
to his house, broke down the door and violated the privacy of their
home:
Lekotse: My family was affected since that day. Now my life was
affected since that day. It was at night.
Ilan Lax: I want to know about your children first.
Lekotse: I have ten children, two have passed away. Now on the day of
the assault, I was with three children at home.
Lax: Can you tell us about the incident that happened. Was it in May
1993?
Lekotse: Maybe you’re right — you know my problem is, I was a
shepherd. I cannot write and forget all these days. Now listen very
carefully, because I’m telling you the story now. They were [at my home]
you know, it’s a pity I don’t have a stepladder. I will take you to my home
to investigate.
Lax: You indicate that you injured your shoulder. Did you sustain any
other injuries?
Lekotse: I was not injured anywhere else.
Lax: In your statement you mentioned you were injured in your ribs? I’m
just helping you to remember.
Lekotse: Are you not aware that the shoulder is related to the ribs sir?
Lax: Did you or your son ever make a case against the police?
Lekotse: We never took any initiative to report this matter to the police,
because how can you report policemen to policemen?62
Krog notes how Ilan Lax, the leader of testimony at the hearing,
continually interrupted Lekotse at the beginning of his story. He did
this because of a specific technique employed by the TRC when
testimony was given. Krog explains that the leader of a testimony had
a twofold task. First, she had to steer the testimony in a direction that
would yield enough facts of use to the Commission, and second, she
had to let the testimony unfold as ‘spontaneously’ as possible so that
there could be ‘healing’ and ‘renewed self-respect’. This is why Lax
started of on a personal note by asking Lekotse about his children.
But, as Krog observes, this technique made the shepherd impatient.
He wanted to continue with his story about the event that had
affected his and his family’s life for ever. Lax kept on interrupting him
and at a certain stage the shepherd spoke too close to the microphone

61
Krog (n 17 above) 210-220.
62 Krog (n 17 above) 210-216.
28 Karin van Marle

so that Lax had to ask him to speak more softly. Then Lax asked the
date:
This throws the narrator off course again. Surely the precise date on
which your life was destroyed is irrelevant? It could have been any day,
the important thing is that it happened.63
Lekotse hesitated for a moment and said that being a shepherd he
could not write and could not remember dates:
But he is a hardened survivor, and he rightly gets firm with Lax: ‘Now
listen very carefully, because I’m telling you the story now.’ He starts
with a contradiction: ‘On that day, it was night.’ And this introduces the
ambiguity that is maintained throughout the story, not only in the facts
of the testimony but in the symbols used: day and night, white and
black, life and death, educated and illiterate.64
Lekotse gave attention to details in his story: The police broke the
door out of the door frame, stormed into the house with dogs, insulted
the occupants, opened the closets and threw the contents on the
floor. In the tradition of a shepherd he made the comment that not
even a jackal, when it gets in among the sheep, behaves like this:
They were worse than jackals, says Lekotse. And since the jackal is the
shepherd’s greatest enemy, a threat to the flock night and day, he means
that the security police exceeded his worst expectations of evil.65
This story illustrates something significant about the limits inherent
in any legal process. The TRC, as an institutionalised process and
space, aimed to take account of difference. Yet, it failed. It failed to
accept the diversity, the otherness of Lekotse’s life world. This failure
might not be because of a lack of good intention. The TRC could not
address the shepherd’s difference fully because it was hampered by
its own rational beliefs and rational life world and by following a
specific technique when leading a testimony. It was hampered by its
own institutionality and legality. This illustrates the inability of law to
have regard for difference without reducing it to something that we
know.
Douzinas and Warrington discuss the case of a number of Tamils
seeking asylum in Britain.66 The reason for the Tamils fleeing Sri
Lanka was because the majority Sinhalese government and the Indian
army had lodged an offensive against the guerilla Tamil forces in the
north of the islands. The applicants were refused asylum by the
immigration authorities and challenged the refusal by way of judicial
review. The sole point for consideration was the interpretation of the
phrase ‘well-grounded fear of persecution’ as found in the definition
of a refugee under section 1 of the United Nations (UN) Convention on

63 Krog (n 17 above) 217.

64 Krog (n 17 above) 217.
65
Krog (n 17 above) 218.
66 Douzinas & Warrington (1995) (n 11 above) 204.
 Chapter 2 29

the Status of Refugees. The Court of Appeal held that the test for a
‘well-founded fear of persecution’ was qualifiedly subjective and that
it would be satisfied if a person showed actual fear and good reason
for this fear. The House of Lords, however, held that a genuine fear
of persecution was not enough. The fears should have an ‘objective
basis’ which could be ‘objectively determined’. The decision of the
immigration authorities was re-instated and the refugees sent back to
Sri Lanka. The authors note the injustice of this decision, how the fear
and the particularity of the refugees were made abstract and
generalised by the legal proceedings and by the ‘justice of a
straightforward rule-application’.67 ‘In the idiom of cognition, fear is
either reasonable and can be understood by the judge, or is
unreasonable and therefore non-existent.’68
Would it have been to the benefit of Lekotse if the TRC
interrogator had been more attentive, taken more time, shifted from
a strict technique aimed at getting chronological and objectively
determined facts, accepted a more fluid approach, or recognised the
open spaces in the text? Or would it have been to the benefit of the
Tamil asylum seekers if the immigration authorities and the Court had
been more attentive, more willing to accept a subjective ground for
fear than an objectively determined one? Would we move closer to
the ever-unreachable aim of justice if we were less rule bound, less
predictable, less caught up in the speed of technical administration?
Of course I am not arguing that it would have led to justice or would
have taken away the violence that Lekotse and the Tamil refugees had
suffered. However, by following an approach of slowness with greater
attentiveness to the plight of the victims rather than interrogating,
the stories told could have been heard in a more just, less rule-bound
manner.
As stated above, I am not suggesting that a new method of law and
legal interpretation be followed, but rather an approach, which, if
embraced by legal scholars, lawyers and judges, could have an effect
on how we understand and do law in the long run. If a court
procedure, for example, follows the suggested approach of slowness,
of accepting the possibility of multiple truths, the disruption of
chronological time and the idea of justice as the limit of the law and
institutionalised legal procedures, then the justification that is
provided, the reasons given for a decision might be richer, more
reflexive and more reflective of the open and democratic society that
we strive for. As Kentridge observes: ‘The more general it becomes,
the less it works.’69

67 Douzinas & Warrington (1995) (n 11 above) 214.

68
Douzinas & Warrington (1995) (n 11 above) 208.
69 Cameron et al (n 44 above) 34.
30 Karin van Marle

6 End remarks

To end this piece we return to the beginning, but it could also be that
we begin by turning to the end. We recall Kundera's call for slowness,
joined explicitly by Auster's character, Auggie. But implicitly the
interpretation of art entails a certain slowness, to read and reread,
interpret and re-interpret without hastening to a final end. The time
that is followed by the law and legal institutions is a time that
generalises and universalises and fails to embrace particularity and
difference. Therefore, the law will always attempt to create false
new communities, urge us to forget, or at least construct memory in
a way which forces us to negate all risk. Such an institutional
approach, because of its limits, will strive for speed and closure. An
approach of slowness and delay reflects another relationship between
law and time and another approach to law and legal interpretation.
An attitude of slowness and attentiveness when approaching life
and when interpreting and negotiating the past, present and future is
open to the various traces that occur and re-occur. We become aware
of these traces when we listen to narratives, interpret art and the
law. For Kabbo, certain traces, material elements of his life that
cannot be reduced to language or static monuments, run right through
his experiences and memories. The recollection of materiality,
embodiedness and embeddedness assists in the struggle against the
violence and reduction inherent in universalisation, generalisation
and closure. Similarly, Auggie’s photographing of natural and human
time and Sophie Calle’s attention to seeming trivialities allow the
occurrence and re-occurrence of traces. An artist I have not referred
to in this contribution but whose work I am currently considering in
my continuing contemplations on slowness is Andries Gouws. His
latest exhibition, Hiding between simple things, draws the viewer’s
attention to the ‘everyday world and its objects’.70 Gouws relates
painting to meditation, which he regards, among other things, as ‘to
slow down’.71 In aiming to slow down the viewer’s ‘eye’ he strives to
share the ‘experience that everyday objects become transfigured
when looked at closely’.72 Gouws’s work, like the other examples
referred to here, suggests other possibilities with regard to reflecting
on, but ultimately for doing and living law.
An inherent part of Kentridge’s technique of charcoal drawings is
to allow for various traces to haunt the viewer. He comments as
follows:
I believe that in the indeterminacy of drawing, the contingent way that
images arrive in the work, lies some kind of model of how we live our

70 Andries Gouws Hiding between simple things Exhibition notes (2006) 1.

71
As above.
72 As above.
 Chapter 2 31

lives. The activity of drawing is a way of trying to understand who we

are or how we operate in the world. It is in the strangeness of the
activity itself that can be detected judgement, ethics and morality.
Trains of thought that seem to be going somewhere but can’t quite be
brought to a conclusion. If there were to be a very clear, ethical or moral
summing-up in my work, it would have a false authority.73
In following an approach of slowness to law and legal interpretation,
an openness to traces and other ways of remembering, imagining and
justifying could come to the fore. Such an approach could offer a way
in which justice — although it can neither be done, nor be seen to be
done — and our responsibility of acting justly can be reflected on in
ways different from mere rule-bound justice, and the suffering of the
other can become more prominent. ‘The Other persecutes me, puts
me in passivity, asks me for sanctuary as (s)he persistently refuses it
to me. And if this is the law of ethics, does the law heed its call?’74

73
Cameron et al (n 44 above) 43.
74 Douzinas & Warrington (1995) (n 11 above) 201.
 3 Transforming memory transforming

Michael Bishop

1 Introduction

What is the role of memory in a transformative constitution? Is it a

force for or against transformation, or is that too simple a
characterisation of a phenomenon that acts both for and against
transformation? Starting with the employment of memory in AZAPO1
I will argue that the traditional account of memory is too simple. That
construction of memory is designed to work within a conception of
transition as a one-way bridge from to the past to the future.
However, true transformation is much more complex and requires a
re-imagining of the bridge as a space rather than a path. For memory
to aid in that transformation we must realise two things: The role of
memory in interpretation and the nature of memory itself.
When used as an interpretive tool, memory does not always pull
in the same direction. A memory, whether it is ‘good’ or ‘bad’, can
either promote or restrict transformation, depending on how it is
employed. I will try to show with reference to case law, specifically
the recent decision of the Constitutional Court in Doctors for Life
International v Speaker of the National Assembly & Others,2 how
memory is used in various different ways. We also need to see memory
not as a linear and indisputable account of past events, but as a
mutable and individual reaction or interaction with the past. Using
the work of Brian Havel, I will argue for a conception of memory that
challenges an idea of an official memory or a ‘grand narrative’ of
history by drawing on conceptions of a fluid history, social memory,
but more importantly, individual affective memory. When that
memory is employed in legal interpretation, it can only fuel the fires
of transformation. By transforming our idea of memory we can ensure
that South African law will continue transforming.

1 AZAPO v President of the Republic of South Africa 1996 4 SA 671 (CC), 1996 8
BCLR 1015 (CC)(‘AZAPO’).
2
Doctors for Life International v Speaker of the National Assembly & Others 2006
6 SA 416 (CC).

33
34 Michael Bishop

2 The transitional bridge

AZAPO provides a candid and detailed look at the role of memory and
forgiveness in South Africa’s move to a constitutional democracy. It
recognises that both remembering and forgetting are essential to
reconciliation. The victims need to know what happened to their
loved ones in the past, but that knowledge will only become available
if they can also forget the illegality of the actions that caused their
loss. Without this simultaneous contradiction, Mahomed DP in AZAPO
warns us that we will
hobble more than walk to the future with heavy and dragged steps
delaying and impeding a rapid and enthusiastic transition to the new
society at the end of the bridge, which is the vision which informs the
epilogue.3
However, while AZAPO engages honestly and meaningfully with issues
of memory, it still portrays a very specific and limited vision of the
South African transition. It sees the transition as a linear movement
from an evil past across a ‘historic bridge’ to a better future. That
sentiment is probably best expressed in an earlier judgment of Deputy
President Mohamed. In Shabalala & Others v Attorney-General of the
Transvaal & Another he provided the following description of the
constitutional project:
What is perfectly clear from these provisions of the Constitution and the
tenor and spirit of the Constitution viewed historically and teleologically
is that the Constitution is not simply some kind of statutory codification
of an acceptable or legitimate past. It retains from the past only what is
defensible and represents a radical and decisive break from that part of
the past which is unacceptable. It constitutes a decisive break from a
culture of Apartheid and racism to a constitutionally protected culture
of openness and democracy and universal human rights for South
Africans of all ages, classes and colours. There is a stark and dramatic
contrast between the past in which South Africans were trapped and the
future on which the Constitution is premised. The past was pervaded by
inequality, authoritarianism and repression. The aspiration of the future
is based on what is ‘justifiable in an open and democratic society based
on freedom and equality’. It is premised on a legal culture of
accountability and transparency. The relevant provisions of the
Constitution must therefore be interpreted so as to give effect to the
purposes sought to be advanced by their enactment.4
On this construction of the constitutional bridge, memory’s role is to
guide us in an orderly line from one side to the other. A single memory
of the horrors of the past exists in order to constantly remind and
convince us that we must do everything in our power to avoid a return

3 AZAPO (n 1 above) para 18.

4
Shabalala & Others v Attorney-General of the Transvaal & Another 1996 1 SA 725
(CC); 1995 12 BCLR 1593 (CC) para 26 (emphasis added).
 Chapter 3 35

to those horrors. All memories must promote a specific reading of the

Constitution, indeed a specific reading of all law that leads us in that
same direction. Memory on this understanding becomes a restricting,
or even simply a rhetorical device that does nothing more than shore
up a particular understanding of the Constitution or a set political
vision. Pierre de Vos has made this point very forcefully:
Put bluntly, according to this approach one can get to grips with the
meaning of the constitutional text if one refers to the specific apartheid
past to identify all the wicked attitudes and practices that existed
before commencement of the interim Constitution. It is thus only with
reference to this shameful history that we can really understand what
the text of the Constitution is trying to achieve.5
Now, I accept that not even Mahomed DP would argue that we will all
interpret provisions identically, even if we do have the same
memories and the same vision of a future in mind. We might have
different ideas of how to reach that utopia or even slightly different
visions of the exact contours and shades of that dream. But AZAPO
most certainly does interpret the Constitution as a one-way bridge
from the past to the future, with little room to manoeuvre and which
we will eventually leave behind. This metaphor of the bridge is what
I would like to call the transitional bridge. It depicts a transition from
one society to another. That does not mean that the bridge is entirely
straightforward. In Ruti Teitel’s examination of ‘transitional justice’,
she argues that law in a transitional society both influences and is
influenced by the political changes that occur.6 Law has a very
different role to play in this transitional setting:
The threshold dilemma lies in the context of political transformation:
Law is caught between the past and the future, between backward-
looking and forward-looking, between retrospective and prospective.
Transitions imply paradigm shifts in the conception of justice; thus, law’s
function is inherently paradoxical. In its ordinary social function, law
provides order and stability, but in extraordinary periods of political
upheaval, law maintains order, even as it enables transformation.
Ordinary predicates about law simply do not apply. In dynamic periods of
political flux, legal responses generate a sui generis paradigm of
transformative law.7
Law on the transitional bridge is certainly not ordinary law. The
political and social upheaval forces law to adapt and to play a
different role to what it might normally do. But the very idea of
transitional justice is that it is temporary. Once the transition ends,
law returns to its accustomed role of stability and stagnation. Once

5 See P de Vos ‘A bridge too far? History as context in the interpretation of the
South African Constitution’ (2000) 17 South African Journal on Human Rights 1
11.
6 See R Teitel Transitional Justice (2000) and R Teitel ‘Transitional jurisprudence:
The role of law in political transformation’ (1997) 106 Yale Law Journal 2009.
7 Teitel ‘Transitional jurisprudence’ (n 6 above) 2013.
36 Michael Bishop

the transition ends, the role of memory in fuelling change and

challenge fades away. Is there not an alternative idea of bridging in
which the transition never ends and memory always retains a role?

3 The transformative bridge

As an alternative route to the transitional bridge, there is the

transformative bridge which arises from the re-interpretation of the
bridge metaphor suggested by several critical scholars including
Andre van der Walt and Wessel le Roux.8 Van der Walt argues that if
we choose to cross the transitional bridge, ‘there will no longer [be]
room for imagining that things could be different, that there might be
further options and more complex alternatives to the two places
between which we have chosen to choose.’9 The transitional bridge is
falsely dichotomous — forcing us to place every idea or law on one
side of the bridge, to label it as either old or new, bad or good. This
involves two fallacies: First, that we can leave our past behind us ‘as
easily as crossing a bridge’; and second, that we should want to get
to the other side of the bridge and leave ‘no room for imagining
alternative futures’.10
Van der Walt argues instead for a conception of a bridge that is
meaningful not because of the points it connects, but because of the
abyss over which it stretches. On this understanding of the purpose of
the bridge, there is no advantage to one side over the other and the
bridge in itself invites multiple crossings between the two. In the
words of Robert Cover, ‘[L]aw may be seen as a system of tension or
a bridge linking a concept of reality to an imagined alternative.’11 The
significance is, as Wessel le Roux notes,12 not in the bridge itself, but
in the act of bridging — the linking of the past and future, reality and
imagination — to create new ideas in the present. This view avoids the

8
A number of other writers, particularly Henk Botha, have engaged with
alternative notions of transformative constitutionalism which reflect or adopt
similar notions of the transformative bridge. See for example H Botha
‘Metaphoric reasoning and transformative constitutionalism (part 1)’ (2002)
Tydskrif vir die Suid-Afrikaanse Reg 612; H Botha ‘Metaphoric reasoning and
transformative constitutionalism (part 2)’ (2003) Tydskrif vir die Suid-Afrikaanse
Reg 20; A Boshoff ‘Law as dialogical politics’ in H Botha et al Rights and
democracy in a transformative constitution (2003) 1; H Botha ‘Freedom and
constraint in constitutional adjudication’ (2004) 20 South African Journal on
Human Rights 249; K van Marle ‘Lives of action, thinking and revolt — A feminist
call for politics and becoming in post-apartheid South Africa’ (2004) 19 SA
Publiekreg/ Public law 605.
9
A van der Walt ‘Dancing with codes: Protecting, developing and reconstructing
property rights in a constitutional state’ (2001) 118 South African Law Journal
256 296.
10
As above.
11 RM Cover ‘The Supreme Court, 1982 term — foreword: Nomos and narrative’
(1983) 97 Harvard Law Review 4 as quoted in van der Walt (n 9 above) 296.
12
W le Roux ‘Bridges, clearings and labyrinths: The architectural framing of post-
apartheid constitutionalism’ (2004) 19 SA Publiekreg/Public Law 629 634.
 Chapter 3 37

confrontational nature of the transitional understandings of struggle

and change which are inherent in the transitional bridge and invites
us to think of new ways of addressing problems and of structuring our
society.13
Le Roux continues to add his own gloss to van der Walt’s ‘bridge
as bridging’. The vision of a bridge suspended over a vast, endless
abyss elicits a feeling that Kant, and le Roux, would describe as
‘sublime’ — a feeling of astonishment, bordering on terror at the
immenseness of the sight. The sublime represents the limit of
imagination; we cannot conceive of the vastness that confronts us.
Transformative constitutionalism is not to be found in this sublime,
but in the postmodern response to the sublime. Lyotard characterises
this reaction as the response of avant garde art to modernist art
whose task is the ‘constant “scrutiny of the ... techniques used to
instill a belief in [reality]” coupled with a constant exposure of “the
artifices of presentation that allow thought to be enslaved by the gaze
and diverted from the unpresentable.”’14 The transformative bridge
is suspended over the abyss that is the law. When we look down and
are filled with awe, we should not let that awe overwhelm us or limit
us in our perception of the law or abyss. Rather we should constantly
try to peer deeper to understand, to question, to imagine what lies at
the bottom. Because the abyss is infinite, we will never leave the
bridge because we will never cease feeling the sublime nor cease
questioning or imagining what the vastness means.
Both of these (de)constructions of the bridge reflect a completely
different vision of post-apartheid South Africa to that articulated in
AZAPO. Rather than a vision of transition from the past to the future,
van der Walt and le Roux offer a space in which dialogue and
transformation are truly possible, in which new ways of being are
constantly created, accepted and rejected and in which change is
unpredictable and constant. I would call this a transformative bridge
because it envisions constant change and re-evaluation without end,
rather than a move from one point to another. Probably the best way
to characterise the difference is that the transitional bridge is a path,
while the transformative bridge is a space.

13
Van der Walt explains this confrontational dynamic with reference to land law. He
argues that the current approaches to existing land inequality are a form of ‘toyi-
toyi jurisprudence’ which defines itself through its opposition to apartheid land
law. Its power comes from ‘confronting and facing the other, waiting for
something to be given or done by the other’. Van der Walt (n 9 above) 292. The
problem with this approach is that it is ‘locked into the mode of permanently
highlighting the failures and injustices of the past and demanding change and
reparation from the opponent, rather than making a positive move’. Van der Walt
(n 9 above) 292-293.
14 Le Roux (n 12 above) 634.
38 Michael Bishop

4 Memory in interpretation

The question that I want to ask, and hopefully answer, is how we can
re-imagine the role of memory in constitutional interpretation, as
outlined in AZAPO, so as to act as a catalyst for action in the space of
the transformational bridge, rather than a guide over the transitional
bridge. Instead of memory pointing out what our society should not
be, memory can be used to stimulate debate about where society
should go. No group or ideology can claim a monopoly on memory to
force a particular change. Rather memory is used to promote change
for its own good. The first part of my answer to this question involves
the ways in which memory influences interpretation, while the second
part concerns more basic questions about the nature of memory itself
in a community.
To turn to the first part — the role of memory in interpretation.
To recap: The traditional account of memory in AZAPO argues that the
memory of the evils of the past compels us to seek out a better future.
Firstly, we must recognise that memories are not always negative. We
will not always want to escape our past. Indeed, even today, while
most of our past is undoubtedly terrible, there are some aspects of
our past of which we can rightly be proud. At any stage in history
there are good memories and bad memories; memories we wish to
embrace and those we wish to destroy; stories we will tell our
children with pride and stories we will tell our children when they
refuse to go to sleep; memories for which we will build monuments
and memories for which we will build memorials.15 Secondly, the
effect of a particular memory on the interpretation of laws does not
depend on whether it is good or bad, celebratory or cautionary. Both
types of memories can inspire change and chain us to our past.

4.1 Bad memories

Let us begin with bad memories which, unfortunately, are much more
prevalent in our reality and in our courts’ jurisprudence. A bad
memory can serve as a memorial to remind us that we will ‘never
again’ return to that past. In that way it acts as a solvent for
transformation because it inspires us to rectify our past to alter our
future. But, memories of oppression and hate can also lock us in the
same circle of hate from which the memories themselves spring. If we
become so obsessed by the hatred of the past, we are unable to move

15 See L du Plessis ‘The South African Constitution as memory and promise’ (2000)
11 Stellenbosch Law Review 385. According to du Plessis, the Constitution can be
seen either as a ‘monument’ or a ‘memorial’. To paraphrase: A monument
celebrates the past while a memorial commemorates it.
 Chapter 3 39

on, unable to change because that would force us to give up our

addiction to hate.
AZAPO is probably the best possible example of how negative
memories can pull both for and against change. On the one hand, the
judgment and the interim Constitution specifically recognise that it is
the suffering of apartheid that inspires the constitutional project. It
is the need to avoid all the varied forms of racial domination —
physical, economic and psychological — that led to the creation of a
Bill of Rights whose main aim is to prevent the recurrence of those
atrocities and which embodies the desire to address violence with
reconciliation rather than more violence. At the same time, it is the
memory of those atrocities that prevents AZAPO and its members
from accepting the call for amnesty. Deputy President Mahomed
specifically recognises the validity of their claim for retribution,16 but
he also recognises that those memories prevent the applicants, and
society at large, from crossing the proverbial bridge. As he notes: ‘It
might be necessary in crucial areas to close the book on that past.’17
If our memory prevents us from closing that book, it also prevents us
from transforming.

4.2 Good memories

Let us turn our attention now to good memories. If our memories of

the past are positive, then it is possible that we will become satisfied
with those memories and prefer to live in the past rather than the
future. In that way good memories prevent transformation because
we have no desire to change even if the reality of the present no
longer reflects the ideal of our memory. However, recollections of
past achievements or of former happiness can also inspire us to create
new ways of regulating society or being in society that enhance, alter
and exceed the memories themselves. Whether the memory will have
one or another effect does not depend on the content of the memory,
but on its employment and interpretation.

16
AZAPO (n 1 above) para 16.
17 AZAPO (n 1 above) para 2.
40 Michael Bishop

Probably the best example of reliance on ‘good’ memories are

cases which involve the interaction between the Bill of Rights and the
common law. On the one hand, there are cases such as Afrox
Healthcare Bpk v Strydom18 and Brisley v Drotsky19 where an overly
strong reliance on the memory of the benefits of the common law
doctrine of the sanctity of contract prevents transformation and
denies constitutional protection to vulnerable groups in society.20 The
Supreme Court of Appeal (SCA) in both cases focuses solely on the
traditional benefits offered by sanctity of contract and its established
place in our law, and ignores its potentially unjust consequences.
Because sanctity of contract was an effective mechanism to regulate
agreements in the past, these cases ignore the possibility that there
might be a better or different way of approaching such matters in the
future. This is an instance of the supposed ‘goodness’ of the past
thwarting transformation in the present.
On the other hand, the values underlying the common law have
often been employed by courts to supplement, support or even found
developments in the law in post-apartheid South Africa. National
Media v Bogoshi stands out as an example of the SCA ‘remembering’
the true values of freedom of speech that underlie the common law
and using those values to enhance the protection of the media.21 The
SCA was called on to re-evaluate the application of the law of
defamation to printers, newspapers and publishers (media
defendants). The position prior to Bogoshi, laid down in Pakendorf &

18 Afrox Healthcare Bpk v Strydom 2002 6 SA 21 (SCA). The case concerned the
validity of a contract signed by a patient (the respondent) when he was admitted
to hospital. The contract included a clause exempting the hospital (the appellant)
from liability for the negligence of any of its staff. The respondent argued that
the clause was against the public interest because of the necessity of providing
medical services and the unequal bargaining positions of the parties. He argued
that the common law should be developed in light of the Bill of Rights to
invalidate the clause. In dismissing all the respondent’s arguments, the Supreme
Court of Appeal relied on the idea that the sanctity of contract is always in the
public interest and so, therefore, was the specific clause at issue.
19
Brisley v Drotsky 2002 4 SA 1 (SCA). The parties had concluded a written lease
agreement in terms of which Brisley rented a townhouse from Drotsky for R 3 500
per month. The contract included a clause that stated that amendments would
only be binding if they were made in writing. Despite this, the parties orally
agreed that Brisley could pay her rent late for a few months. Despite this
agreement, after a few months Drotsky refused to accept late payment and
evicted Brisley. The Court upheld the common law rule that clauses requiring
amendments in a specific form were valid and therefore refused to recognise the
oral agreement and upheld the eviction. Despite the manifest injustice of the
result, the Supreme Court of Appeal found that the traditional reverence given to
the sanctity of contract outweighed the fairness and the housing interests on
which Brisley relied.
20
For criticism of both these judgments and the South African law of contract as a
whole see AJ Barnard A critical legal argument for contractual justice in the
South African law of contract (2005) unpublished LLD thesis at the University of
Pretoria; AJ Barnard ‘To wonderland through the looking-glass: Conceiving a
critical legal argument for contractual justice in the South African law of
contract’ (2006) 17 Law and Critique 153.
21 National Media v Bogoshi 1998 4 SA 1196 (SCA).
 Chapter 3 41

Andere v De Flamingh,22 was that media defendants were liable for

defamation even if there was no intent or negligence on their part.
Hefer JA, writing for a unanimous Court, rejected this strict liability
and put in its place an idea of reasonable publication which,
effectively, would hold media defendants liable only if they acted
negligently. Bogoshi is interesting because there is no reference to
the Constitution; the decision is specifically founded on the memory
of already existing common law principles of the importance of
freedom of speech.
But the role of memory in interpretation is much more complex
than merely classifying a memory as good or bad and then
determining whether it had a transformative or non-transformative
effect. There will obviously be disputes about whether a memory is
good or bad and even about what memories should inform a decision.
There will also be dissent about whether any specific memory requires
a remembering or a forgetting to advance the goal of a transformative
society. The examples offered above are simply my opinions about the
goodness or badness of the memories and whether they have acted for
or against transformation. If we want always to transform we must
sometimes remember and sometimes forget, but how do we know
when to do what? We do not. Maybe transformation really lies not in
change, but in the constant tension between change and stasis that
this examination of memory tries to illuminate. A transformation is
not successful if it achieves certain predetermined goals. It is
successful if the content and relevance of those goals and the extent
to which they have been achieved remains up for question.

4.3 Doctors for Life International v Speaker of the National

Assembly

The recent judgment of the Constitutional Court in Doctors for Life

International v Speaker of the National Assembly & Others offers a
perfect example of the complex role of memory in interpretation.
Before explaining the different ways in which memory was employed
in this decision, I should just briefly outline what the case was about.
Doctors for Life challenged four pieces of health legislation (one of
which amended the conditions under which women could receive
abortions) on the grounds that the National Council of Provinces
(NCOP) had failed in its duty to facilitate public participation. The
claim was based on section 72(1)(a) of the Constitution, which states
that the NCOP must ‘facilitate public involvement in its legislative
and other processes’, and on section 118(1)(a), which imposes a
similar duty on the provincial legislatures. The facts showed that the

22 Pakendorf & Andere v De Flamingh 1982 3 SA 146 (A).

42 Michael Bishop

majority of provinces had failed to hold any public hearings or even

invite written submissions.
The Court had to decide, firstly, whether the NCOP had complied
with this constitutional obligation and, secondly, if it had not
complied, what would be an appropriate remedy. Eight of the justices
held that, although it was a sensitive issue in which the Court should
rightly give a great degree of deference to parliament, the
Constitution mandated that the measures taken by parliament were
reasonable and gave the Court the jurisdiction to determine the
reasonableness or otherwise of the measures that parliament chose to
facilitate public involvement. They found that, considering the public
interest that both the Choice on Termination of Pregnancy Act and the
Traditional Health Practitioners Act had raised, the failure to hold
public hearings or invite written submissions, when the NCOP itself
had determined that public hearings were necessary, was
unreasonable. The slightly less exciting Dental Technicians
Amendment Act had generated zero public interest and the failure to
hold hearings for that Act was therefore reasonable. The majority
then found that the only competent remedy where it had been found
that parliament had failed to facilitate its public involvement
obligation was to declare the resulting legislation invalid.
Before I move to the function that memory played in the decision,
I should emphasise that memory played only a supporting role. The
judgments rely predominantly on basic notions of what is or is not
democratic. However, what makes the decision interesting is that all
the judgments use memories to support their own peculiar conception
of democracy. This shows us that memory is not an argument that
supports a particular outcome, but a context within which the
decision is made that informs and heightens the debate.
Ngcobo J, who penned the main judgment, notes that during
apartheid people formed the idea of ‘people’s power’ as a challenge
to the undemocratic public regime. These pockets of direct public
participation not only aided in overturning the apartheid regime, but
also served as the motivation for the strong participatory threads in
our Constitution.23 In a concurring judgment, Justice Sachs focuses on
the participatory manner in which the new Constitution was adopted.
He finds that the present South African culture of ‘imbizo, lekgotla,
bosberaad, and indaba’24 is really ‘[a] long-standing, deeply
entrenched and constantly evolving principle of our society [which]
has ... been subsumed into our constitutional order’.25 Both these
justices use the memories of public participation as a motivation for
their conclusion of the centrality of public participation in our

23 Doctors for Life (n 2 above) para 112.

24
Doctors for Life (n 2 above) para 227.
25 Doctors for Life (n 2 above) para 235.
 Chapter 3 43

democracy and for the necessity of the court to interfere in the

legislative process to uphold that right to public participation when
necessary.
In contrast, the minority of justices, Yacoob, Skweyiya and van
der Westhuizen, use memory to reach the opposite conclusion. They
find that, although public participation is an important principle, it is
not a prerequisite for the constitutional validity of an Act of
parliament. They go so far as to suggest that invalidating law created
by the people’s elected representatives undermines the true import
of the struggle against apartheid. That struggle was not for public
participation, but for the right to vote for a truly democratic
legislature. According to Justice Yacoob, ‘The failure to accord due
weight to the actions and decisions of the representatives of the
people of South Africa would demean the very struggle for
democracy.’26 The point is made even more compellingly by Justice
van der Westhuizen in his short but powerful dissent:
Socially, economically and otherwise apartheid was of course the
exclusion of the majority of South Africans from meaningful
participation in virtually every sphere of life; indeed from recognition as
human beings with inherent dignity. Therefore they were excluded from
decision-making processes. But legally, constitutionally and politically
apartheid was above all the denial of the right to vote for
representatives of one’s choice in general elections. The apartheid
rulers could still afford to have imbizos, lekgotlas, bosberade and
indabas with traditional leaders and interest groups and, in fact, had
some. They could, after all, ignore the inputs made. They could never
afford to have fair and free general elections.27
In this case there is real debate, firstly about what memories are
appropriate for interpretation. The majority focuses on incidents of
public participation in our past, while the minority focuses on the
denial of the right to vote. The first is a good memory, the second is
a bad memory. There is also dispute about the correct employment of
these memories. The majority would no doubt argue that greater
protection of public participation serves the goals of a transformative
society, by increasing involvement in public decision making and
ensuring the government is more reflexive to the people. The
minority, however, offers a compelling, if somewhat cynical counter
for why the use of that memory really hampers the goals of democracy
and ultimately, because the Court exceeds the limits of its powers,
hinders transformation.
While I am probably more sympathetic to the majority’s take on
public participation for the simple reason that the minority ultimately
fails to provide an effective remedy, I find the dissent very

26
Doctors for Life (n 2 above) para 294.
27 Doctors for Life (n 2 above) para 244(5).
44 Michael Bishop

compelling. What I am certain about is not only that the case as a

whole clearly illustrates that memory plays a vital role in
interpretation, but also that memory helps to create spaces and
tensions in jurisprudence that themselves serve to advance the cause
of transformation by promoting contestation and dialogue.

5 The nature of memory

The second reason why, or the second manner in which, memory

serves a transformative rather than a transitional ideal is the nature
of memory itself. Brian Havel's recent article entitled ‘In search of a
theory of public memory: The state, the individual, and Marcel
Proust’ provides a good starting point for discussion.28

5.1 Official memory

Havel begins by laying a convincing empirical and theoretical

foundation for the existence of what he calls ‘an official public
memory’ which serves both as a necessary means of maintaining social
control and stability, but also as a way to block and deny
contestations of the official account. This official memory is founded
on public documents and laws — statutes, treaties, official speeches
and court decisions. However far removed these are from reality, they
become part of and eventually define the social conscience. This
official memory ‘seeks, through maintenance of a contrived
ideological account of the past, to mask contestations of that
account. Accordingly, official public memory is neither complete nor
authentic.’29 It is instead a selected take on the past that best serves
the needs of those in power.
Modern official memories are a less obvious, but possibly more
dangerous form of the memory control in George Orwell’s novel 1984.
In the novel, the protagonist’s job is to ‘correct’ false information as
it becomes false. A massive government department, the Ministry of
Truth, is devoted to constantly changing old news reports to reflect
the Party’s current position on what happened in the past. To quote
from the novel:
The past is whatever the records and the memories agree upon. And
since the Party is in full control of all records ... it follows that the past
is whatever the Party chooses to make it ... [W]hen [the past] has been
recreated in whatever shape is needed at the moment, then this new
version is the past, and no different past can ever have existed.

28 B Havel ‘In search of a theory of public memory: The state, the individual, and
Marcel Proust’ (2005) 80 Indiana Law Journal 605.
29 Havel (n 28 above) 608.
 Chapter 3 45

The reason for creating this official memory is obvious: In the

words of Rage against the machine: ‘Who controls the past now
controls the future. Who controls the present now controls the
past.’30
Havel offers a number of specific examples of this official memory
at work. He devotes a significant portion of the article to the creation
of an official memory in post-World War II Austria that denied its
responsibility for Nazi atrocities. However, I prefer to focus on two
more currently relevant examples of official memory that Havel
refers to.
Firstly, our very own Truth and Reconciliation Commission. Havel
argues that truth commissions are creations of the state, organised by
the state and for the purposes of the state. ‘The compiled record of
the national administration acquires an authority that is legally
dispositive, and this new history is inscribed into the official State
liturgy.’31 By rejection or exclusion of alternative narratives,
purposefully or negligently, the report creates an official account of
memory that is difficult to supplement and almost impossible to
contradict. It sidelines or marginalises all those stories that do not
make it into the official report. Those stories never form part of the
official memory.32
The other interesting example that Havel gives is the Patriot Act
in the United States of America (USA).33 The Act, and the official
pronouncements surrounding it, serve to create in the public memory
a new memory of 9/11 and its aftermath; a memory where
international law and principles of human rights are not violated by
‘anti-terrorism’ measures, but rather where human rights and
freedom as we know them depend for their very existence on those
measures. Human rights are now viewed as ‘evanescent indulgences,
negotiable in the face of threats of terror, rather than as prerequisite
conditions of the global order’.34
There is another problem with official memory, specifically in the
manner it is used by the courts. Pierre de Vos notes the danger of the
Constitutional Court using official memory or what he calls a ‘grand

30
Rage against the machine ‘Testify’ from the album The Battle for Los Angeles
(2001).
31 Havel (n 28 above) 664.
32
Karin van Marle has argued that the paradoxical success of the TRC lies in this
very failure to be complete. It is only because it is incomplete that there is still a
possibility for alternative narratives to be heard. K van Marle ‘Lives of action
thinking and revolt — A feminist call for politics and becoming in post-apartheid
South Africa’ (n 8 above) This proves the point that a truth commission is
dangerous and the more complete it claims to be, the more dangerous it is. If the
commission represents the complete truth then there is no space for re-
interpretation or challenge. It is only to the extent that a report is accepted as
being incomplete that the possibility for change and renewal remains.
33
Havel (n 28 above) 614-615.
34 As above.
46 Michael Bishop

narrative’ of history. Effectively the Court is replacing obsolete ideas

of legal interpretation, such as divining the intention of the
legislature, with a ‘new fiction’ that interpretation must accord with
its particular vision of South African history. Because that vision of
history is necessarily incomplete, the judges are making ‘deeply
political choices’ about what the history of our country is. That we
may agree with their take on South African history does not make the
practice any less dangerous in principle.

5.2 History

What challenge, if any, is there to the dominating force of official

public memory? Havel begins by considering the possible challenge
offered by the factual or archivist account of history. History seems
to challenge an official public memory because it is a claim to real
factual occurrences that could undermine inaccuracies in an official
account. However, it is history’s reliance on facts that makes it
infinitely contestable and therefore no match for the self-determined
and self-justifying truth of official memory. History can rarely offer as
compelling a version of events as can contrived official memory. As
Havel writes:
Ironically, therefore, because of its most defining (and intellectually
appealing) characteristic, history lacks the dogmatic stability — and,
frankly, the institutional centrality — that would make it a discourse that
would challenge the supremacy of official memory.35
Also history, like public memory, is ultimately based on subjective
biases in interpretation and so it faces the same objections as public
memory; it is only one person’s account.36 ‘History’, according to
Pierre de Vos ‘is nothing more than an interpretation by a specific
person with a specific point of view at a specific historical juncture of
selected past events.’37
As an example of history’s failure to challenge official memory,
Havel looks at the phenomenon of holocaust denial. If we view the
holocaust as a function of official memory, the question is whether

35
Havel (n 28 above) 617.
36
As above. ‘The work of historians is never a pure facsimile of the past but an
ideologically fraught conversation among the present, the past, and themselves
... In this sense, historians are no less immune than governments from the viral
effects of the interpretive fallacy — the idea that all attempts to configure the
past are threatened by the biases of relativism and presentism.’
37
De Vos (n 5 above) 17 (emphasis in original). This idea of ‘history’ is not the same
as ‘the archive’. The archive, as I understand it, would include history but also
the affective memory described below which does offer a real challenge to
official memory. For more on the archive in post-apartheid South Africa see van
Marle (n 8 above).
 Chapter 3 47

historical fact can ever challenge that memory.38 Take, for example,
the case of Ernst Zundel who was criminally charged in Canada for
denying that the holocaust occurred. Part of Zundel’s defence
strategy was to expose the relativism of history. According to him, the
holocaust ‘was a theory, and entitled therefore to “the same
epistemological status” as the negationists’ theory’.39 While this was
a good strategy for Zundel, it shows that history can neither confirm
nor deny that the holocaust occurred. History effectively adds nothing
to the debate apart from saying that all interpretations are possible.
But that means that the official version will always remain the most
powerful. No matter what the historical facts are, the holocaust will
never be denied as long as it remains part of the official memory.

5.3 Social memory

Is there any alternative site or form of memory that can challenge the
official public memory? Havel employs the thought of the French
social philosopher Maurice Halbwachs as an alternative. Halbwachs
argues that memories are also created by so-called affective
communities such as families, churches or other fellowships. Each
individual memory contributes to the ‘mediated memory’ of the
community to construct a bottom-up challenge to top-down official
memory based on real lived experiences.40 Unlike official public
memory, which applies to an entire state, is dictated and is designed
to be permanent and unchanging, mediated memory
is the fluid possession of specific groups, a shifting constellation of ideas
and events that are mutually reinforcing and that ebb and flow with the
shifting membership of the group ... The progression of memories is
irregular — eroding as members of the social group die or become
isolated — and so in a constant process of transformation along with the
group itself.’41

5.4 Individual affective memory

Havel agrees with much of Halbwach’s argument, but contends that

he does not go far enough. There is no reason to require that true
individual or affective memory must exist in communities rather than
individuals. Each individual forms his or her own memories which are
based not on the dry recollection of learnt facts but on emotional
responses to experiences that allow immediate and lasting recall. Our

38
None of this should be taken as the author in any way denying that the Holocaust
occurred — he is convinced it did. It is just a useful example to investigate the
relationship between history and official memory.
39 Havel (n 28 above) 683.
40 See generally M Halbwachs On Collective Memory (1992); M Halbwachs The
Collective Memory (1980).
41 Havel (n 28 above) 690.
48 Michael Bishop

individual memories, like official memory, are constructed and

inaccurate.42 However, what individual memory has, which official
memory will always lack, is an emotional dimension.
We remember, in effect, how we felt at the time of a particular incident
or series of incidents. Details may evaporate … but the power of the
affective memory does not.43
Halbwach’s social memory fails to take account of this uniquely
personal characteristic of individual memory which is the only truly
distinguishing characteristic from, and the greatest danger to, official
memory.
How could this theory operate in the field of law? Let us say a law
is passed in South Africa allowing detention of suspected terrorists
without trial. This law might incite an emotional response that people
had in the past to a similar provision allowing detention without trial
under apartheid. This emotional recall would pose a real threat to any
official memory that denies the existence or oppression of the earlier
detention laws or tries to distinguish the proposed practices from
apartheid legislation. It is a response that, because it is involuntary,
is uncontrollable.
It is in this affective memory that Havel locates the counterweight
of official memory. He writes:
When we express the sense that the past remains open or open-
textured, but always threatened by the canonical actions of official
memory (and perhaps also of history, as it turns out), we can now also
recognise that a theory of public memory must embrace the lived
experience of individuals as reflected in their personal affective
memory, and therefore must always embrace the potential of
contestation.44
But memory is not entirely individual. We will always be influenced by
official memory and by the mediated memories of the communities
we live in. Memory as a whole is the combination of all these
competing forms of memory. This multiple conception of the nature
of memory as a contest not only between public and individual
memory, but which is also affected by historical accounts and social
memories shows again why memory has an important role to play in a
transformative constitution. Memory is itself subject to the same
internal tensions as law — tension between the need to order society,
give effect to the wishes of the community and promote individual
justice.
This conception of memory also answers de Vos’s concern with a
‘grand narrative’. De Vos specifically limited his critique of the

42 Havel (n 28 above) 697-699.

43
Havel (n 28 above) 699.
44 Havel (n 28 above) 620.
 Chapter 3 49

Court’s use of history to the Court espousing a single ‘grand narrative’

of history.45 If we jettison the belief in a single possible account of
history and employ in its place a rich and fluid account of memory as
a function of many competing ideas, then instead of enforcing a
particular account of the past, we will use the full complexity of the
past to inspire and create new ideas for the present.46

6 Transforming memory transforming

The final thesis of this paper is that the multiple roles of memory in
interpretation and the constant malleability of memory itself help to
make a transformative constitutionalism possible. I must make it clear
that I am not arguing that memory is the only factor or even
necessarily the main factor driving transformation. Much more is
required for a full, open dialogue than memory. What I am arguing is
that memory is an indispensable condition for transformation and that
the nature and role of memory determine the nature of
transformation. In analytical language, thick memory is a necessary
but insufficient condition to enable transformative constitutionalism.
In conclusion, transformation, even in the open sense described
earlier, makes sense only if there are transformations from one
position to another. That seems to me to be impossible without
memory. And the nature of memory also determines the nature of
those transformations. If memory is a clear cut and universal idea of
fact that has a predictable and incontrovertible effect on the
interpretation of a provision, then we should stay on AZAPO’s
transitional bridge and hope we reach the other side soon. If however,
memory is, as I have argued, a constant struggle between official,
historical, social and individual accounts of the past and if the effect
of memory, with transformation or not, is not only unpredictable but
unknowable, then we should get comfortable in the space of the
transformative bridge because we are going to be here for a while.

45
De Vos (n 5 above) 32-33.
46
Indeed this affective account of memory might be even more effective in meeting
the challenge of the grand narrative than the ‘history continuously produced
through a self-conscious and reflexive methodology — one that calls into question
the conditions that produce specific versions of South Africa’s past’ that de Vos
offers. De Vos (n 5 above) 32. The thick conception of memory proffered in this
paper would include this type of history but also go beyond that to include
additional forms of memory that bring even more reflexivity and fluidity.
 4 AZAPO: Monument, memorial ... or
mistake?

Lourens du Plessis

1 A text in the public sphere — to begin with

Generations of children born and yet to be born will suffer the

consequences of poverty, of malnutrition, of homelessness, of illiteracy
and disempowerment generated and sustained by the institutions of
apartheid and its manifest effects on life and living for so many. The
country has neither the resources nor the skills to reverse fully these
massive wrongs. It will take many years of strong commitment,
sensitivity and labour to ‘reconstruct our society’ so as to fulfill the
legitimate dreams of new generations exposed to real opportunities for
advancement denied to preceding generations initially by the execution
of apartheid itself and for a long time after its formal demise, by its
relentless consequences.1

Marius Pieterse,2 in seeking to explain what ‘we mean when we talk

about transformative constitutionalism’ cites this dictum from the
AZAPO judgment to emphasise the indispensability of a
transformative constitutionalism — engendered by political transition
and the need for a transformed society — so as to address ‘severe
patterns of social, economic and political vulnerability and
deprivation in South Africa’. That similar considerations were not
exactly uppermost in the mind of Mahomed DP, the judicial author of
the Constitutional Court’s majority judgment in the AZAPO case and
thereby also (the original author) of the dictum Pieterse cites, is
borne out by the sentence preceding these words, and actually
introducing the paragraph of the judgment in which they occur:
The families of those whose fundamental human rights were invaded by
torture and abuse are not the only victims who have endured ‘untold
suffering and injustice’ in consequence of the crass inhumanity of
apartheid which so many have had to endure for so long.3
Mahomed DP, unlike Pieterse, is not bent on addressing — and seeking
means to redress — the plight of the many who suffer ‘social,

1
AZAPO and Others v President of the Republic of South Africa 1996 8 BCLR 1015
(CC), 1996 4 SA 672 (CC) (AZAPO) para 43.
2 M Pieterse ‘What do we mean when we talk about transformative
constitutionalism?’ (2005) 20 SA Publiekreg/Public Law 155 157.
3 AZAPO (n 1 above) para 43.

51
52 Lourens du Plessis

economic and political vulnerability and deprivation’. Instead he is

developing an argument designed to justify comprehensive amnesty
for those who perpetrated the ‘torture and abuse’ suffered by some
of the victims of injustice. Pieterse draws on this text in the public
domain — authored by a foremost, modern-day judicial rhetorician —
not as ratio decidendi to make a case law point, but as ‘rhetorical
authority’. By excising the introductory sentence from the passage he
quotes — as he is entitled to do in order to make his particular point
— Pieterse actually creates a ‘new text’ with considerable rhetorical
pizzazz and free from a burdening quest to justify (come what may!)
impunity for erstwhile perpetrators of suffering and injustice.
Moreover, the original full quotation from the AZAPO judgment is
prone to leave readers with the impression that those (few?) whose
human rights ‘were invaded by torture and abuse’ and the many
suffering ‘social, economic and political vulnerability and
deprivation’ constitute dissimilar categories of injured persons —
which, of course, in actual fact hardly, if ever, is or was the case.
Pieterse’s adaptation of the original text, on the other hand, speaks
only of, and for, the many.
The AZAPO judgment as a whole is largely characterised by this
ambiguity of, on the one hand, transformative expectations raised by
Mahomed DP’s rhetorical flair and, on the other hand, inhibiting
artificialities attendant on the justification of impunity for wilful
perpetrations of severe human rights violations — for the very sake of
transition and eventually, perhaps, transformation.4 Justification of
impunity, one should be reminded, is what the AZAPO case was all
about. South Africa’s ‘interim’ Constitution5 concluded with a most
unusual ‘postamble’6 — or ‘epilogue’, as it was referred to throughout
the AZAPO judgment — entitled ‘National Unity and Reconciliation’
and ‘for all purposes … deemed to form part of the substance of’ the
Constitution.7 This postamble emphasised the need for national
reconciliation and a healing of the divisions of the past, and required
amnesty to be granted ‘in respect of acts, omissions and offences
associated with political objectives and committed in the course of

4 The distinction(s) and relationship between transition and transformation — and,

following from that, the correlation between transitional justice and
constitutionalism and transformative justice and constitutionalism — are not at
all obvious. For attempts at sorting out this relationship (and correlation) in a
theoretically feasible manner, see for example RG Teitel Transitional justice
(2000) 191-228 and P Langa ‘Transformative constitutionalism’ (2006) 17
Stellenbosch Law Review 351 351-352. On transformative constitutionalism in
general (with reference to the South African situation), see Pieterse (n 2 above)
and K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 South
African Journal on Human Rights 146.
5
Constitution of the Republic of South Africa Act 200 of 1993.
6 As opposed to a ‘preamble’.
7 See sec 232(4) of the transitional Constitution. According to Langa (n 4 above)
352 this epilogue/postamble provides a basis for an understanding of what
transformative constitutionalism is.
 Chapter 4 53

the conflicts of the past’. It furthermore instructed parliament to

determine a cut-off date and procedures to apply for such amnesty.
The Promotion of National Unity and Reconciliation Act8 was
subsequently enacted, stipulating conditions — and laying down the
application procedures — for amnesty.9 It called into existence the
Truth and Reconciliation Commission (TRC) consisting of three
different committees commensurate with a three-pronged strategy to
deal with ‘truth and reconciliation issues’ during — and for the sake
of — the transition.10 The three committees were the Human Rights
Violation Committee, which held public hearings on human rights
violations; a Reparations and Rehabilitation Committee tasked with
redressing and providing compensation for human rights violations,
and an Amnesty Committee authorised to grant perpetrators of human
rights violations immunity from both criminal prosecution and civil
liability, provided that their violative acts could be associated with a
political objective (as defined in the Act) and that all relevant facts
about such acts were fully disclosed. Section 20(7) of the Act
confirmed that individual immunity against criminal and civil liability
would be consequent upon a successful application for amnesty. The
said provision also discharged the state — and other bodies,
organisations or persons — from (vicarious) civil liability for acts thus
granted amnesty. AZAPO, the applicant, challenged the con-
stitutionality of section 20(7) alleging that it breached every person’s
right, guaranteed in section 22 of the transitional Constitution, ‘to
have justiciable disputes settled by a court of law or ... another
independent and impartial forum’.11
I shall deal briefly with two ostensible weaknesses in the
Constitutional Court’s reasoning in AZAPO, not just to shoot down the
judgment — though I am going to be critical of it — but also to
highlight, and try and come to terms with, the difficulties that beset
a court seized with dispensing transitional justice in the narrow sense
of the word, that is, with reference to the past perpetration of
specific atrocities. The two shortcomings on which I am going to
concentrate are, first, the Court’s unsatisfactory methodology in
dealing with international law and, secondly, the Court’s inability
fully to comprehend the vital political role it had to play in handing
down a judgment on which the fate of the truth and reconciliation

8
Promotion of National Unity and Reconciliation Act 34 of 1995.
9
For a to-the-point description of the process and its course, see G Kemp ‘Moving
from conflict to reconciliation: A brief evaluation of certain aspects of the South
African Truth and Reconciliation Commission’ (2005) 6 Griffin’s View on
International and Comparative Law 5 and F Venter ‘Die verfassungsmäßige
Überprüfung der Rechtsgrundlagen von Südafrikas “Truth and Reconciliation
Commission”’ (1997) 57 Zeitschrift für ausländisches öffentliches Recht und
Völkerrecht 147. (The latter contribution is also an analysis of the AZAPO
judgment.)
10
See Promotion of National Unity and Reconciliation Act sec 3.
11 Presently sec 34 of the Constitution of the Republic of South Africa, 1996.
54 Lourens du Plessis

process — and, ultimately, transitional justice — in the ‘new South

Africa’ crucially depended.
The Constitutional Court’s judgment in AZAPO was handed down
on 25 July 1996 — one year, one month and 19 days after its epoch-
making judgment of 6 June 1995 in S v Makwanyane and Another,12
the first judgment that was considered in the present series of
retrospectives.13 Save for the absence of Kentridge AJ in AZAPO, the
panels of concurring judges in the two cases were identical. It will be
helpful, especially with regard to the aspects of AZAPO that I shall
single out for discussion, to invoke certain aspects of the Makwanyane
judgment to highlight comparable aspects of AZAPO in bold relief. A
comparison of the two judgments will, for instance, bring to light that
on issues relating to international law they are disturbingly dissimilar
(and even contradictory), while on the issue of the political nature of
constitutional review both are unenlightening (and uninspiring). Both
the similarities and differences mentioned render a comparison
worthwhile.
In the conclusion the differences between Makwanyane and
AZAPO will be depicted with the help of an analytic metaphor —
distinguishing monuments and memorials as role-players in narrating
and authoring a nation’s history — and then the question whether
AZAPO was ‘a mistake’ will be considered. The sensitive handling of
this last question could help cultivate an awareness of the difficulties
that beset judicial endeavours to dispense transitional justice in the
narrow sense of the word.

2 International law reasoning

AZAPO, the applicant, contended that a state is required by

international law, and a series of Geneva Conventions in particular,
to prosecute the perpetrators of gross human rights violations, such
as wilful killing, torture or inhuman treatment and wilfully causing
great suffering or serious injury to body or health, and that section
20(7) of the Promotion of National Unity and Reconciliation Act thus
breached international law.14 In terms of the said Conventions:
The High Contracting Parties undertake to enact any legislation
necessary to provide effective penal sanctions for persons committing,
or ordering to be committed, any of the grave breaches ...
In the light of the Constitutional Court’s decidedly generous attitude
towards international law in the Makwanyane case, this was a

12
S v Makwanyane and Another 1995 6 BCLR 665 (CC); 1995 3 SA 391 (CC); 1995 2
SACR 1 (CC) (Makwanyane).
13 On 14 and 15 February 2005; see ‘Focus: Ten years after Makwanyane’ (2005) 20
SA Publiekreg/Public Law 242.
14 AZAPO (n 1 above) para 25.
 Chapter 4 55

promising and potentially fruitful line of argumentation for the

applicant to explore. In Makwanyane, Chaskalson P verbalised the
Constitutional Court’s recognition of the vital role of international
law in the interpretation and application of the Constitution (and the
Bill of Rights in particular) as follows:
International agreements and customary international law ... provide a
framework within which chap 3 [the transitional Bill of Rights] can be
evaluated and understood, and for that purpose, decisions of tribunals
dealing with comparable instruments ... may provide guidance as to the
correct interpretation of particular provisions of chap 3.15
The sentiments informing this dictum were also echoed by Mokgoro J,
in a somewhat more categorical vein, stating that the transitional
Constitution
requires courts to proceed to public international law and foreign case
law for guidance in constitutional interpretation, thereby promoting the
ideal and internationally accepted values in the cultivation of a human
rights jurisprudence for South Africa.16
These two dicta will henceforth be referred to as ‘the framework
dicta’.
Chaskalson P’s framework dictum is preceded by an observation
that section 231 of the transitional Constitution17 — predecessor to
sections 231 and 232 of the 1996 Constitution — set out the (‘black-
letter’) requirements for
• customary international law to be binding; and
• for the ratification and accession to international agreements to
become ‘binding [law] within South Africa’.18
Especially significant was Chaskalson P’s contention that in the
context of section 35(1) of the transitional Constitution — predecessor
to, among others, section 39(1)(b) of the 1996 Constitution — ‘public

15
Makwanyane (n 12 above) para 35.
16
Makwanyane (n 12 above) para 304.
17 Sec 231 provided as follows:
(1) All rights and obligations under international agreements which immediately
before the commencement of this Constitution were vested in or binding on
the Republic within the meaning of the previous Constitution, shall be vested
in or binding on the Republic under this Constitution, unless provided
otherwise by an Act of Parliament.
(2) Parliament shall, subject to this Constitution, be competent to agree to the
ratification of or accession to an international agreement negotiated and
signed in terms of section 82(1)(i).
(3) Where Parliament agrees to the ratification of or accession to an international
agreement under subsection (2), such international agreement shall be binding
on the Republic and shall form part of the law of the Republic, provided
Parliament expressly so provides and such agreement is not inconsistent with
this Constitution.
(4) The rules of customary international law binding on the Republic, shall, unless
inconsistent with this Constitution or an Act of Parliament, form part of the
law of the Republic.
18 Makwanyane (n 12 above) para 35.
56 Lourens du Plessis

international law would include non-binding as well as binding law’

that ‘may both be used under the section as tools of interpretation’.19
Section 35(1) enjoined — as section 39(1)(b) still enjoins — judicial
interpreters of the Bill of Rights to have regard to public international
law applicable to the protection of the rights entrenched in the Bill of
Rights. Indicative of Chaskalson P’s relaxed (almost freewheeling)
attitude towards dealing with international law was his unblinking
assumption that article 32 of the 1969 Vienna Convention on the Law
of Treaties of 1969 (the ‘Convention on Conventions’) was good
enough authority for South African courts to invoke (constitutionally)
travaux préparatoires to interpret the (South African) Constitution.
In AZAPO the Constitutional Court (per Mahomed DP) prefaced its
international law inquiry with the observation that ‘[t]he issue which
falls to be determined in this Court is whether section 20(7) of the Act
is inconsistent with the Constitution’.20 He then continued:
If it is, the enquiry as to whether or not international law prescribes a
different duty is irrelevant to that determination. International law [is]
... relevant only in the interpretation of the Constitution itself, on the
grounds that the lawmakers of the Constitution should not lightly be
presumed to authorise any law which might constitute a breach of the
obligations of the State in terms of international law. International
conventions and treaties do not become part of the municipal law of our
country, enforceable at the instance of private individuals in our courts,
until and unless they are incorporated into the municipal law by
legislative enactment.21
According to Mahomed DP, this last contention derived from section
231 of the transitional Constitution which, as previously indicated,
was the constitutional ‘black-letter law’ on the recognition, status
and force of international law. An evidently literal(-ist) reading of
section 231 brought the Court to the conclusion
that when Parliament agrees to the ratification of or accession to an
international agreement such agreement becomes part of the law of the
country only if Parliament expressly so provides and the agreement is
not inconsistent with the Constitution.22
An Act of parliament can furthermore, so the Court thought, ‘override
any contrary rights or obligations under international agreements
entered into before the commencement of the Constitution’.23
Section 35(1) of the transitional Constitution — the predecessor to
section 39(1)(b) of the 1996 Constitution24 — is, in the Court’s view,
also perfectly consistent with the foregoing conclusions.

19 As above.
20
AZAPO (n 1 above) para 26.
21 As above.
22 AZAPO (n 1 above) para 27.
23
As above.
24 As above.
 Chapter 4 57

The court is directed only to ‘have regard’ to public international law if

it is applicable to the protection of the rights entrenched in the chapter
[ie the transitional Bill of Rights].25
Specific rules of international law embodied in the Geneva
Conventions would, according to Mahomed DP, be irrelevant if the
impugned section 20(7) had indeed been authorised by the
Constitution, but the Conventions on which the applicants relied in
any event did not assist their case. First, it was doubtful, on technical
grounds pertaining to the nature of the conflict in South Africa,
whether these Conventions applied at all.26 Secondly, international
law attaches dissimilar consequences to severe acts of violence
carried out in the course of a war between states and such acts
committed, within the territory of a sovereign state, pursuant to a
conflict between the forces of that state and dissident forces
operating under responsible command. Under the Geneva
Conventions a contracting state is under no obligation to prosecute
perpetrators in the latter category, even for ‘grave breaches’ of
human rights. This is so because upon cessation of the conflict,
erstwhile adversaries most often have to face the prospect of living
and working with each other, and it is then best left to the state
concerned to decide what measures will be most conducive to
national reconciliation and reconstruction.27 So far the Court’s
findings.
The about-turn on the conditions for the implementation of
international law, within a matter of 13½ months after Makwanyane,
of virtually one and the same panel of Constitutional Court judges was
well-nigh bizarre. The magnanimous monism of Makwanyane,
premised on a ready acceptance of the intertwinement and, indeed,
unity of international and domestic constitutional law, made way for
a determinate dualism in AZAPO, anointing domestic — constitutional
— law as a gatekeeper strictly controlling the access of international
law to the scene of domestic constitutional adjudication.28
International law scholars have pointed out that the fixation of the
Court in AZAPO with the Geneva Conventions as sources of
international law on amnesty was ill-conceived, since cogent
authority in other sources of international law point to a sustained
obligation of states always to prosecute the perpetrators of grave
breaches of human rights, irrespective of the nature of the conflict in

25 As above. My emphasis.
26
AZAPO (n 1 above) para 29.
27
AZAPO (n 1 above) paras 30 - 31.
28 As to the monism-dualism distinction see J Dugard International law: A South
African perspective (2nd ed) (2000) 4 and A O’Shea International law and
organization — A practical analysis (1998) 124-127. The conventional distinction
is becoming increasingly contentious. See eg W Scholtz ‘A few thoughts on section
231 of the South African Constitution, Act 108 of 1996’ (2004) 29 South African
Yearbook of International Law 202 204-205.
58 Lourens du Plessis

the course of which such breaches occurred.29 The Court’s

understanding that, in terms of the Geneva Conventions, acts of
violence in a war between states and in a conflict between a state and
its dissident citizens (may) attract dissimilar consequences has also
been questioned.30
Furthermore, in AZAPO31 very little became of Chaskalson P’s and
Mokgoro J’s framework dicta in Makwanyane,32 and of the
methodology they entail. In Makwanyane, Chaskalson P referred to
section 231 to introduce his significant findings on the generous use
of international law sources to assist the construction of provisions of
the Bill of Rights in that Constitution.33 In AZAPO a literal
interpretation of section 231 and section 231(1) in particular, was
relied on to rein in the effects of international law — and bear in mind
that section 231 was to a large extent but a transitional arrangement
lacking the sophistication of the later sections 231 - 233 of the 1996
Constitution.34
The Court found section 35(1) of the transitional Constitution,
perfectly consistent with section 231 of that Constitution because
‘[t]he court is directed only to “have regard” to public international
law if it is applicable to the protection of the rights entrenched in’
the Bill of Rights.35 One of the startling implications of this finding is
that section 231 of the transitional Constitution had to be invoked to
determine what may qualify as (binding) international law to which
the Court had to have regard in terms of section 35(1). Sections 231
and 35(1) in actual fact provided for two different ways of invoking
international law for two different purposes, namely, in the first
instance, to determine what binding international law is and, in the
second instance, to aid the interpretation of the domestic Bill of
Rights.36 This Chaskalson P rightly saw — hence his conclusion that the
section 35(1) reference to international law covered non-binding
international law too. However, this finding was no invitation to rely
on international law in an arbitrary (‘free-for-all’) manner: There

29
Z Motala ‘The Constitutional Court’s approach to international law and its method
of interpretation in the “Amnesty decision”: Intellectual honesty or political
expediency?’ (1996) 21 South African Yearbook of International Law 29 31, 38-40,
48-52.
30
Motala (n 29 above) 31, 53-57.
31 By the way this is the only case in which the Constitutional Court considered the
(transitional) Constitution’s ‘black-letter law’ on the recognition, status and
force of international law embodied in sec 231 of that Constitution.
32 Makwanyane (n 12 above) paras 35 & 304 respectively.
33
Makwanyane (n 12 above) para 35.
34
Motala (n 29 above) 35, for instance, describes sec 231(1) of the transitional
Constitution as ‘a claw-back clause allowing parliament to change treaty
obligations and customary international law rules with respect to international
agreements’.
35 AZAPO (n 1 above) para 27.
36
Secs 231 - 233 & sec 39(1)(b) of the 1996 Constitution presently fulfil the same
two functions.
 Chapter 4 59

was, and under the 1996 Constitution still is, an obligation to ‘have
regard to’ — the present version reads ‘to consider’ — international
law. The prescriptive authority of the Constitution was and is thus
invoked peremptorily, to direct attention to international law in its
broad signification, and then to consider its (possible) application.
The AZAPO findings required section 231 to be invoked in order to
determine to which international law a court was bound, and section
35(1) would then justify reliance on such binding international law to
construe provisions of the Bill of Rights. That is absurd. A court,
tribunal or forum or any other law-enforcing agency must at any rate
be alert to law that (possibly) binds it, and it must ‘obey’ such law if
it is found to be binding. There is no need for a special provision to
remind any such organ that it should have regard to, or should
consider, such binding law: It is its duty to do so. Section 35(1) of the
transitional Constitution could thus not have had — and section
39(1)(b) of the 1996 Constitution does not have — any function other
than to prompt regard for, or consideration of, international law not
binding in terms of section 231 of the transitional- or sections 231 -
233 of the 1996- Constitution.
In sum then, it will be hard to blame any international law
connoisseur for conceiving of AZAPO as, to put it mildly, a serious
drawback for reliance on international law especially in the
interpretation of the Bill of Rights in South Africa.

3 Political policy reasoning

In S v Makwanyane and Another,37 Sachs J asserted that in

determining the constitutionality of capital punishment it was the
function of the Constitutional Court ‘to interpret the text of the
Constitution as it stands’ and to come up with a ‘purely legal’
response irrespective of ‘our’ (the judges’) personal views on the
fraught subject of capital punishment. In a similar vein Chaskalson P
insisted that public opinion, though it may have some relevance for
an enquiry into the constitutionality of capital punishment, cannot in
itself be a substitute for the duty vested in the courts to interpret the
Constitution and to uphold its provisions without fear or favour.38 The
tacit contention in both dicta is that politics can be kept out of a
court’s ‘purely legal’ deliberations about whether highly contro-
versial and ‘politicised’ legislation, or executive action, passes
constitutional muster. It is hard not to recognise the following claim
in AZAPO as a contention of the same order:
There can be legitimate debate about the methods and the mechanisms
chosen by the lawmaker to give effect to the difficult duty entrusted

37
Makwanyane (n 12 above) para 349.
38 Makwanyane (n 12 above) para 88.
60 Lourens du Plessis

upon it in terms of the epilogue. We are not concerned with that debate
or the wisdom of its choice of mechanisms but only with its
constitutionality.’39
What makes this claim or contention in AZAPO all the more
extraordinary is that it concluded the Court’s, if not justificatory,
then at least distinctly understood account of why it would be sensible
for a legislature in a state-in-transition to exchange the stick of
punishment for the carrot of amnesty in an attempt to encourage
erstwhile perpetrators of ‘torture and abuse’ to make full disclosures
about their vile action so that light could be shed on the fate of
victims that had disappeared.40 This is justification of a political
course of action, no doubt, though the Court probably might have
thought that it was dealing (simply) with the (juridical) exculpation of
individuals in order to serve some ‘greater good’. However, when it
came to the question whether the impugned section 20(7) of the
Promotion of National Unity and Reconciliation Act rightly immunised
the state against vicarious liability occasioned by the misdeeds of
some whom it once employed, politics entered the picture more
boldly and unmistakably. At this point the Court felt itself constrained
to deal with the (policy) question of whether it will be better to spend
the scarce resources of the new state on paying delictual claims for
wrongdoings from a bygone era or rather to invest the said resources
in the socio-economic advancement of the masses in need, with a
better future in view for them.41 The Court unmistakeably placed its
stamp of approval on the latter alternative thereby — once again —
undeniably exercising a policy choice. In so doing it uttered — as (part
of the) justification for its preference — the dictum with which this
paper commenced.42
Karin van Marle’s work illustrates that it is very difficult, if not
impossible, to come up with a definition that captures politics — or
‘the political’ — in its distinctiveness and at the same time escape the
straightjacket of essentialism.43 For present purposes I regard
‘politics’ as strategising decisions and action calculated to muster and
wield power — any sort of ‘social’ power, but the focus here is on
state power. This depiction of politics is but a tentative working
definition sufficient, however, to make the points that need to be
made. The ‘technical’ definition of ‘organ of state’ in section 239 of
the Constitution explicitly excludes ‘a court or a judicial officer’, but
this does not mean that courts and judicial officers do not in fact

39
AZAPO (n 1 above) para 21.
40
As above.
41 AZAPO (n 1 above) para 42.
42
AZAPO (n 1 above) para 43.
43 K van Marle ‘Lives of action, thinking and revolt — A feminist call for politics and
becoming in post-apartheid South Africa’ (2004) 19 SA Publiekreg/Public Law 605
and Van Marle ‘Broken lives and deaths and the potential of politics after
Makwanyane’ (2004) 20 SA Publiekreg/Public Law 243 245-250.
 Chapter 4 61

make political choices and wield state power with political effect
when they exercise their (constitutional) power of review vis-à-vis
legislative and executive organs of state. The Constitutional Court in
AZAPO — and in Makwanyane, for that matter — was no exception.
The political power of a court in human rights adjudication involving
constitutional review is of course subject to all sorts of restraints.
Heinz Klug, for instance, reminds us that
[p]articular histories and contexts — both international and local — play
a significant part in setting the stage upon which judicial review is
introduced. While its ability to build legitimacy through its formal
judicial role is a source of strength, the comparative institutional
weakness of the judicial branch ... requires the judiciary to be circum-
spect in its exercise of authority over the more resourced and powerful
arms of government. In asserting its constitutional powers the judiciary
constantly recognises its ultimate reliance on both the executive and
legislative branches to enforce its holdings on the one hand and to
protect its independence on the other.44
However, in AZAPO the restraints on the exercise of political power
by the Constitutional Court came under considerable strain because
there were potentially awesome eventualities attendant on a judicial
assertion of political power in the AZAPO case. This resulted in AZAPO
being a (constitutional) precedent of a certain kind, as will next be
shown with the help of an analytic metaphor and (still) in comparison
with Makwanyane.

4 Monument, memorial ...45

A constitution as memory can be a monument and a memorial at the

same time. Monuments and memorials have memory in common, but
in significantly distinct ways:46 A monument celebrates; a memorial
commemorates. The difference in (potential) meaning(s) may be
subtle, and in a dictionary sense ‘celebrate’ and ‘commemorate’ may
even be synonyms, but for present purposes they are not or, at least,
not exactly. Heroes and achievements can be celebrated or lionised.
The same cannot be said of anti-heroes, failures and blunders. They
can be remembered yes, but not celebrated. ‘Commemorate’ is a
feasible synonym for ‘remember’, but ‘celebrate’ can only be an
exultant or jubilant mode of remembering. The closeness in meaning
of ‘celebrate’ and ‘commemorate’ is not lamentable. On the

44
H Klug ‘Introducing the devil: An institutional analysis of the power of
constitutional review’ (1997) 13 South African Journal on Human Rights 185 189.
45 The discussion in this section is based on L du Plessis ‘The South African
Constitution as memory and promise’ (2000) 11 Stellenbosch Law Review 385-394;
see also Van Marle ‘Lives of action, thinking and revolt’ (n 43 above) 607-612.
46 For an insightful discussion of the distinction between monuments and
memorials, see J Snyman ‘Interpretation and the politics of memory’ (1998) Acta
Juridica 312 317-321.
62 Lourens du Plessis

contrary, it paves the way for their coexistence — contradictions

notwithstanding. The German words Denkmal and Mahnmal call to
mind these contradictions. A Denkmal can celebrate — and may even
commemorate; but a Mahnmal inevitably warns — and may even
castigate.
Constitutional judgments can manifestly, but need not and do not
inevitably, appeal to the Constitution (either) as monuments or
memorials. Makwanyane, the Constitutional Court’s inaugural judg-
ment,47 for instance, was monumental to the core. The Court in this
case performed a function, and, in fact, cast a die, in respect of
capital punishment, which politicians, due to seemingly insurmount-
able differences among themselves, were not up to. With the advent
of constitutionalism in South Africa, heralded by the commencement
of the transitional Constitution on 27 April 1994, it was predictable
that the constitutionality of capital punishment would soon be
challenged, and that the matter would end up in the Constitutional
Court as court of final instance in ‘constitutional matters’. Apart from
the fact that the Constitutional Court articulated a unanimous and
unambiguous position on capital punishment without dropping a
curtsey before popular or public opinion, it also seized the
opportunity to articulate, forcefully and thoughtfully, its stand on
other key issues in connection with constitutional interpretation and
adjudication, for example, apposite reliance on international law and
appropriate standards for the limitation of constitutionally
entrenched rights.
AZAPO, by contrast, was an instance of damage control haunted
by memories from a shady past. That a case like this would end up in
the Constitutional Court was not a foregone conclusion — but also not
surprising at all. In Makwanyane there was ample opportunity to
develop cogent constitutional arguments about capital punishment
based on universally recognised human rights such as the right to life,
the right to human dignity, the right to equality and in particular the
right not to be subjected to cruel, inhuman or degrading treatment or
punishment. In AZAPO, on the other hand, the Constitutional Court,
charged with the responsibility to pronounce on the constitutionality
of ‘truth and reconciliation legislation’, had to make do with an
exotic, and in many respects fragile (and unstable) constitutional
epilogue/postamble/postscript, the product of political wheeling and
dealing appended to a transitional constitution in a last minute
attempt to ensure a relatively peaceful transition to a new
dispensation. AZAPO, as a reminder of the (shadiness of the) past,
thus assumed the unenviable role of a Mahnmal-like memorial.

47
F Venter ‘The politics of constitutional adjudication’ (2005) 65 Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht 129 143.
 Chapter 4 63

5 ... or mistake? Concluding assessment

Authors criticising the Constitutional Court’s unsatisfactory treatment

of international law in AZAPO have described it as a ‘political’ (and
politicised) judgment.48 However, Makwanyane, a beacon of hope for
reliance on international law in our domestic human rights
jurisprudence, was every bit as ‘political’ as AZAPO was. AZAPO,
because it dealt with the constitutional tenability of amnesty,
touched a very raw political nerve nonetheless. Amnesty was central
to the politically negotiated truth and reconciliation process in South
Africa, holding the key to a ‘new’ democracy memorialising the past
without allowing it to eclipse the future. Had the Court in AZAPO
struck down the impugned section 20(7) of the Promotion of National
Unity and Reconciliation Act, the truth and reconciliation process
would certainly have ground to a halt — with (potentially) ghastly
consequences.
But was AZAPO jurisprudentially sufficiently deficient to be
labelled ‘a mistake’ without ado? Seeing it in its historical context and
tracing its effects in subsequent case law it would seem that AZAPO
did not do irreparable damage. As far as reliance on international law
is concerned there seemed to be a preference for Makwanyane’s
monism in later cases, such as Government of the RSA and Others v
Grootboom and Others.49 And even in those post-AZAPO instances
where the Constitutional Court invoked international law with
circumspection,50 it did not quite resort to AZAPO’s formalist
‘avoidance strategies’ again. Since AZAPO there have also been much
more nuanced case law articulations of judicial involvement in
politics,51 though the Constitutional Court has not finally rid itself of
the illusion that it has this paranormal capacity to hand down ‘purely
legal’ judgments ‘untainted’ by politics.
South Africa’s past was messy and it was at its messiest where
oppression was at its cruellest, that is, where state power was
invoked directly to perpetrate grave human rights violations. Cleaning
up this mess was and is inevitably going to be a messy business too —
and AZAPO, with its jurisprudential flaws and all, stands as a
memorial to such cleaning operations.

48 This is the gist of an article by Motala (n 29 above) 29-59; see also N Botha & M
Olivier ‘Ten years of international law in the South African courts’ (2004) 29 South
African Yearbook of International Law 42 51.
49 Government of the RSA and Others v Grootboom and Others 2000 11 BCLR 1169
(CC), 2001 1SA 46 (CC).
50 See eg Kaunda & Others v President of the Republic of South Africa and Others
(2) 2004 10 BCLR 1009 (CC).
51
See eg President of the Republic of South Africa v SARFU 1999 2 BCLR 175 (CC),
1999 2 SA 14 (CC).
64 Lourens du Plessis

AZAPO, I would suggest, cannot just be ‘a mistake’. All

Constitutional Court judgments could probably do with
jurisprudential improvement — some more than others, and AZAPO
certainly is foremost among the former. It must be borne in mind,
though, that at the time when AZAPO was handed down, the
Constitutional Court had not yet fully appropriated the sharp and
sophisticated (judicial) instruments needed to deal with such a very
‘politicised’ case. AZAPO is a memorable judgment nonetheless: a
mess memorialised and by that token a judicial Mahnmal in every
respect. Had it not been for the result in AZAPO, things could have
been vastly different in South Africa today — and almost certainly not
for the better. Perhaps another jurisprudentially messy (or perhaps a
much less messy) judgment could have achieved the same result, but
the fate to be the judgment achieving this result irrevocably befell
AZAPO. In short, the AZAPO judgment is a judicial memorial
reminding us how messy our past was — and how much messier the
future could have been had we not looked the past squarely in the
eye, albeit through the spectacles of an admittedly imperfect and
legally problematic truth and reconciliation process.
 5 War memorials, the architecture of
the Constitutional Court building
and counter-monumental
constitutionalism

Wessel le Roux

1 Introduction

Immediately upon entering the foyer of the South African

Constitutional Court building, one faces a large stairwell directly
across the floor. The stairwell is markedly older than the rest of the
building. Its front edge is formed by two rows of broken bricks which
cut downwards across unplastered and half painted walls. The
stairwell is clearly a remnant of a disused building which has since
been demolished. Its walls contain numerous lines of graffiti — ‘Viva
MK’; ‘Welkom by B-skof’. There are steel bars in front of the windows,
of the kind typically found in prison buildings. An attentive visitor
entering the foyer may suddenly become aware of traces of the same
kind all around the building. A high wall of cemented rock, barbed
wire and all overshadows the walk up the Great African Steps towards
the entrance of the Court. Two more of the same stairwells stand out
like beacons in the middle of Constitutional Square, directly in front
of the Court. A third is hidden behind the Court building to the east.
Just before one enters the court, directly to the left, is a narrow
entrance leading into a flaking old building and down a row of cells.
Standing in front of the stairwell in the foyer of the new Court
building, a visitor cannot be in any doubt that she is at the heart of
what previously must have been a sprawling prison complex.
Known as the Old Fort prison, the complex in question was one of
the most notorious penal institutions of the apartheid era.1 Dubbed
the ‘Robben Island of Johannesburg’, it comprised four different
sections — a women’s jail, a native jail (also known as ‘Number
four’), the Old Fort itself and an awaiting trial block. The stairwell in
the foyer of the new Constitutional Court building belonged to the
awaiting trial block. It is a central feature of the design, and marks
the position of the new building in space and time. In its new context,

1 L Segal et al Number four: The making of Constitution Hill (2006) 1-46. See also B
Law-Viljoen (ed) Light on a hill: Building the Constitutional Court of South Africa
(2006) 32-45.

65
66 Wessel le Roux

Figure 1: Stairwell and Foyer

the old stairwell serves as a dramatic reminder of the way in which

our courts and criminal justice system were implicated in the daily
administration of, and struggle against, apartheid. As Segal recently
put it:2
Virtually every important political leader in South African history from
Mahatma Gandhi to Nelson Mandela as well as scores of ordinary South
Africans caught in the web of colonial and apartheid repression, have
been imprisoned in these jails. The old stonewalls tell a century’s worth
of stories of an iniquitous political system, a brutal penal institution,
and the resilience of generations of prisoners.

2 Segal et al (n 1 above) i.
 Chapter 5 67

How did it come about that the new Constitutional Court building
was built here? Is there any jurisprudential significance to the fact
that the new Court building is situated on a former prison site, or that
it was self-consciously designed as a memorial to the imprisoned
victims of apartheid? I believe that these questions must be answered
in the affirmative and try to explain why in the pages that follow. I
also indicate what the jurisprudential significance of the memorial
elements of the design might possibly be. The chapter begins with a
discussion of Johan Snyman’s influential attempt to unlock the
dynamics of post-apartheid constitutionalism through an analysis of
war memorials.3 Snyman focuses in particular on the self-refutation
of collective memory which occurs when monuments and memorials
become inscribed into a nationalistic meta-narrative, be it one of
oppression or liberation. The Women’s Memorial in Bloemfontein is a
case in point. To counter this tendency, Snyman calls for counter-
monumental strategies of memory. This call forms the backdrop
against which I proceed to discuss the Truth and Reconciliation
Commission (TRC) process, the architectural design of the
Constitutional Court building, and recent academic attempts to
conceptualise a ‘memorial constitutionalism’. I argue that these
elements combine to form an important supplement to the traditional
discourses of transitional and transformative constitutionalism.

2 War memorials and the call for counter-

monumental strategies of memory

During the middle of the 1990s, after the success of the first
democratic elections in South Africa, various writers looking back on
the history of apartheid began to ask how and why it all could have
happened. The question was posed with particular acuity by Johan
Snyman:4
Why does social evil recur? Why did the memory of the trauma of social
displacement during the Anglo-Boer war not prevent Afrikaners from
implementing a racist policy of displacement themselves?
Snyman believes that an important clue is provided by the inadequacy
or otherwise of our cultural strategies of memory. In the case of
Afrikaner nationalism, the fate of the Women's Memorial is
particularly instructive.

3 J Snyman ‘Suffering and the politics of memory’ in CW du Toit New modes of

thinking (1996) 103; and J Snyman ‘Interpretation and the politics of memory’
(1997) Acta Juridica 312.
4 Snyman ‘Suffering and the politics of memory’ (n 3 above) 106.
68 Wessel le Roux

2.1 Johan Snyman and the Women's Memorial as a counter-

monument

The Women's Memorial was unveiled outside Bloemfontein in 1913, in

memory of the more than 26 000 women and children who died in the
British concentration camps during the Anglo Boer War. The memorial
nevertheless became one of the central official symbols of the
apartheid regime and its racist political ideology of displacement.
What could account for the memorial’s failure? Was it a basic design
flaw which rendered the memorial ineffective? As the first step in
pursuit of an answer to this question, Snyman set out to study the
aesthetic designs of other war memorials. In doing so he relied heavily
on a typology of memory sites which was originally suggested by
Arthur Danto in his discussion of Washington’s memorial core. Danto
suggests that there are tacit rules which govern the design of
monuments and memorials respectively. In Snyman's own words,
these rules boil down to the following:5
[Monuments] are signs that remind one to remember, namely that which
one can take pride in remembering, and which demarcate a decisive
moment as a (new) beginning — a triumph or a victory. The
remembrance of such a decisive moment from the past is rendered in
the present by heroic figures, and these heroes embody the historical
self-perception of the founders of the monument. The subject of the
monument in this sense is a collective 'we', symbolising an uninterrupted
continuity between the represented heroes, the founders, and a possible
public who ought to identify with what is represented, thereby binding
themselves to the tacit oath of allegiance to the collectivity the
monument celebrates. On the other hand, there are memorials. They
are erected as an antidote against forgetting. Memorials ritualise
remembrance and demarcate a decisive moment as an ending. It
reminds one that what is remembered through this sign may never
happen again. Memorials are about victims.
A monument is accordingly typically designed to leave visitors with a
feeling of grateful indebtedness towards the heroes of the past. A
memorial, on the other hand, is typically designed to leave visitors
with a sense of obligation to prevent the repetition of injustice in the
future.
Snyman's analysis of the Women's Memorial begins with the
statement that the Women’s Memorial cannot easily be classified as
either a monument or a memorial — it employs a typically
monumental obelisk for memorial purposes.6 That having been said,
Snyman, somewhat surprisingly, refuses to attach any further
significance to this fact. Purity of design is thus not what is at stake

5
Snyman ‘Interpretation and the politics of memory’ (n 3 above) 317-318.
6 Snyman ‘Interpretation and the politics of memory’ (n 3 above) 321.
 Chapter 5 69

here.7 What Snyman seems to be driving at is a more fundamental

distinction. Monuments and memorials, he explains, can come to
embody one of two markedly different socio-moral imperatives: A
‘historico-ethnic imperative’ or a ‘universal categorical imperative’.8
Where a memorial comes to embody the first kind of imperative, it
closes the ranks of the ‘we’, and ritualises the experience of a
collectivity. Only ‘we’ have victims or heroes. The memorial
institutionalises the victims, they become recognisable and recurring
icons, a general asset.9
In the case of the historico-ethnic imperative, memory is mediated
through an exclusive and excluding, frequently nationalistic,
historical meta-narrative. By contrast, where a memorial comes to
embody a universal categorical imperative, it serves as a warning sign
to all of humanity never to let there be victims again.
The distinction between these two imperatives holds the key to
the fate of the Women’s Memorial. As the twentieth century
unfolded, the memorial increasingly came to embody only a specific
historico-ethnic imperative — in the official government discourse of
the day, the displaced women and children became the exclusive
heroes of the white Afrikaner volk. As such they were understood as
the very embodiment of Afrikaner civic virtue: Love of the fatherland,
bravery in the face of adversity, and faith in God. As is too often the
case with memorialisation processes worldwide, the historico-ethnic
imperative won out against the universal.
Is there any way in which the hold of the historico-ethnic
imperative can be resisted? Snyman insists that there is. He refers in
this regard explicitly to the counter-monument movement in
Germany and elsewhere. Snyman mentions two examples of such
counter-monuments: Jochen and Esther Gerz’s Monument against
Fascism in Hamburg, and Maya Lin’s Vietnam Veterans War Memorial
in Washington DC. The designers of these memorials self-consciously
set out to neutralise the hold which any official or centralised
historico-ethnic imperative might come to exercise over its politics of
memory. Jochen and Esther Gerz did so by gradually sinking their
memorial into the ground, thus effectively destroying it as a spatio-
temporal edifice.10 Maya Lin, in turn, makes use of anti-
representational conceptual art which gives stark testimony to the

7
Snyman ‘Suffering and the politics of memory’ (n 3 above) 120. The point is thus
not that one should regard the Women’s Memorial as ‘an unsuccessful attempt at
a memorial, unsuccessful in more than one sense of the word, namely executed
by an incompetent sculptor, and blurring the borders between a monument and a
memorial’.
8
Snyman ‘Interpretation and the politics of memory’ (n 3 above) 312-313.
9 Snyman ‘Interpretation and the politics of memory’ (n 3 above) 319.
10 Snyman ‘Interpretation and the politics of memory’ (n 3 above) 318. For a more
comprehensive discussion see J Young ‘The counter-monument: Memory against
itself in Germany today’ (1992) 18 Critical Inquiry 267 274-278.
70 Wessel le Roux

brute factuality of death, but which resists any attempt to re-inscribe

the brutality of that fact into any national ethos or heroic realism.11
The question of representation is therefore a central and self-
conscious concern of these counter-monumental designs. One could
even describe these designs as paradigmatic examples of post-
modernism, in Lyotard’s sense of the term — that is, cultural practices
of memory that represent in the act of representation itself that the
unpresentable exists.12 Snyman implicitly adopts this Lyotardian
reading of Lin’s counter-monuments by linking it to the aesthetics of
the Kantian sublime, where Lyotard also locates postmodernist
artistic practices:13
Fifty-eight thousand meticulously recorded war casualties overwhelm
the spectator. The magnitude of this visual record incites the viewer to
produce an imaginative representation of the face of each single victim
— an impossible task which quickly stuns the imagination. Each name
then becomes an abstract, de-personalised instance of the universal
voiceless victim of the modern war industry.
It is the limits of the imagination, the limits of our ability to turn these
records of suffering into a totalising and redeeming national story —
or even a collection of personal stories — that signals the categorical
nature of our political obligation to every single past and future
victim. Jochen and Esther Gerz, like Maya Lin, realised that it was
impossible to give a voice to the victims of war, that is, to provide any
accurate representation of their suffering. Their memorial engage-
ment with the past is therefore not a search for the truth of the past,
or the true meaning of the past. It is a search for the minimum norms
of political responsibility14 — a search which must start with the
inescapable fact of that responsibility. The voice of the victims can
be heard only obliquely, in or as the disruption of the well-maintained
symmetries of public space and public dialogue. Our relationship with

11
Snyman ‘Suffering and the politics of memory’ (n 3 above) 110-111. A bronze
statue of three servicemen by Frederik Hart was later added to the memorial, a
concession to a section of the public which demanded some kind of heroic realism
and national mythology as intrinsic to war memorials in general (108).
12 JF Lyotard The postmodern condition: A report on knowledge (1979) 81: ‘The
postmodern would be that which, in the modern [...] puts forward the
unpresentable in presentation itself; that which denies itself the solace of good
forms, the consensus of a taste which would make it possible to share collectively
in the nostalgia for the unattainable: that which searches for new presentations.
Not in order to enjoy them but in order to impart a stronger sense of the
unpresentable.’
13
Snyman ‘Suffering and the politics of memory’ (n 3 above) 111.
14 Snyman ‘Interpretation and the politics of memory’ (n 3 above) 337.
 Chapter 5 71

Figure 2: Vietnam Veterans Memorial, Washington DC

and responsibility to the victims of past injustices remain

asymmetrical, non-reciprocal, and thus will never be completely
assimilated into the shared dialogue of a collective ‘we’.15 Both the
Hamburg monument and the Vietnam memorial refuse the heroic
inscription of the past into a national and monumental meta-narrative
which offers ready-made answers and meanings instead of a personal
engagement with the past. The Hamburg monument, for example,
vanishes completely and returns the burden of memory to the visitor,
who has herself become the only standing memorial. It is a radical
statement of the contingency and ambivalence of all meaning and
memory and, as such, a form of memory work, which literally,
through its physical and representational minimalism, opens a public
space for active engagement with the past.

15
JF Lyotard The differend: Phrases in dispute (1988) 97-100. The collective ‘we’ of
all nationalistic and republican discourses is threatened with being split by the
actuality of obligation. Obligation separates the ‘we’ of constitutional preambles
into the ‘you’ instance of the addressee and the ‘I’ instance of the addressor.
These pragmatic poles are completely heterogeneous and cannot be translated
into the other: ‘A single proper name, whether singular or collective, designates
an entity astride two heterogeneous situations’ (99).
72 Wessel le Roux

Snyman claims that the Women's Memorial outside Bloemfontein

can be saved from its limited and exclusive historico-ethnic
significance if it is re-read against this background as a counter-
monument, in fact as ‘the first countermonument’.16 He argues that
such a re-reading is suggested by Emily Hobhouse’s original
understanding of the memorial. To be sure, unlike the conceptual
counter-monuments of Lin and Gerz, the Women’s Memorial still
relies on representational realism for its effect. The memorial centres
around the sculpted representation of a scene from a concentration
camp, mounted on top of a four-metre high pedestal, and placed in
front of a monumental obelisk, thus transforming the tragic group into
something heroic. However, Hobhouse never succumbed to what
Snyman calls the ‘latent male chauvinism’ of this heroic idealism.17
As is the case with Lin and Gerz's counter-monuments, the issue of
representation was from the start central to her involvement in the
project. Hobhouse was instructed to oversee the work of Anton van
Wouw, but always felt that his sculpted representations failed to
capture the suffering of the women and child involved. She did not
attribute this fact to the incompetency of the sculptor alone —
although she did that too. According to Snyman, Hobhouse's unease
with the sculptures stemmed from her attraction to the notion of the
sublime.
As explained above, the sublime figure or hero remains an
ambivalent figure, unfinished, the victory postponed, the suffering
incomplete in the representation.18 Hobhouse realised that it was
impossible to give suffering a representational form or voice, or any
redemptive justification. In her thinking the sculpted women
therefore lost their representational localisation and became
elevated to the ranks of the universal women’s struggle for
recognition.19 It was precisely this attempt to link the Women’s
Memorial to a new, universal categorical imperative that was actively
censored and repressed in the official (male) nationalist discourse
which later developed around the memorial. It was this repression,
Snyman argues, that finally explains the failure of the memorial as a
politics of memory.

16 Snyman ‘Interpretation and the politics of memory’ (n 3 above) 328.

17
Snyman ‘Interpretation and the politics of memory’ (n 3 above) 330.
18
Snyman ‘Interpretation and the politics of memory’ (n 3 above) 331.
19 Snyman ‘Interpretation and the politics of memory’ (n 3 above) 329. Snyman
(331) concedes that the abstract universalism of the sublime (as the limit of
embodied representation) bears the danger of one-sidedness. However,
Hobhouse’s politics of memory tried to steer clear of both the dangers of
parochialism and universalism, by portraying the Boer women’s suffering as a
symbol worthy of recollection by both the local community and the whole world.
 Chapter 5 73

2.2 Aletta Norval and the TRC as a counter-monument

Snyman’s attempt to rehabilitate the Women’s Memorial as a counter-

monument, which resists the pull of all exclusively historico-ethnic
imperatives, relies heavily on the German counter-monument
tradition as an alternative to the legacy of the Afrikaner
memorialisation of the South African past.20 The subversive potential
of this tradition has also attracted the attention of other post-
apartheid writers. As the TRC began its work towards the end of the
1990s, Aletta Norval suggested, largely in anticipation, that the TRC
might lead South Africa to a ‘post-national conception of identity’.21
This new identity, she claimed, would celebrate difference and
plurality as constituting features. It would therefore form a marked
contrast with the identitarian and nationalist conceptions of identity
and history, which informed the apartheid past. In this context Norval
suggested that the TRC process should be understood as a counter-
monument, in the same tradition as the Hamburg Monument against
Fascism:22
The Hamburg counter-monument acts, in its absence, as a present
reminder of the past. The TRC in similar manner acts as an important
memory site which demands engagement, not passivity, and change, not
the commemoration of a past with a fixed identity. The fact that its
existence is limited by statute prevents it from becoming a permanent
fixture of the South African political landscape, and thus from becoming
simply yet another monument which allows, and indeed works toward,
forgetting rather than remembrance.
The TRC constituted an attempt to deinstitutionalise memory in
official archives, to create a civil space for memory, and to enable the
re-occupation of memory sites by ordinary citizens. By opening a civil
space of interaction and contestation of the past, it introduced a
post-nationalist phase of memory in which the multiplicity of pasts is
celebrated and identitarian constructions of the past resisted.
According to Norval, the TRC subverted the ability of any party to
control history, and it also did not work with a single nationalistic or
unified concept of nationhood which could glorify death in the name
of national existence. As such the TRC instituted a counter-
monumental form of memory in which the never saturated nature of
memory and identity provided the starting point. It must therefore be
regarded as a completely self-ironical institution:23

20
For other examples of Afrikaner monuments and memorials see MJ Swart et al
Afrikanerbakens (1989).
21
Aletta Norval ‘Memory, identity and the (im)possibility of reconciliation: The work
of the Truth and Reconciliation Commission in South Africa’ (1998) 5
Constellations 250 259.
22
Norval (n 21 above) 260.
23 Norval (n 21 above) 260-261.
74 Wessel le Roux

The kind of remembrance it calls forth, I have argued, is not of a given

and singular past: the past is continuously renegotiated and
reconstructed in its proceedings. Moreover, it does not simply call forth
a plural past, that is, a past consisting of many, but completed elements.
Rather, the continuous reworking and re-elaboration of the past points
towards a fundamental impossibility: the impossibility of completion as
such. [...] The TRC potentially celebrates and commemorates not
completion and national myths or origin in their full splendour, but the
impossibility of identity, the purity or origins, and also of reconciliation.
Norval’s description of the TRC as an institutionalised counter-
monument which leaves no fixed or closed record of the past (or
itself) behind, on the face of it contrasts sharply with Karin van
Marle’s critique of the TRC as a (failed) exercise in reconciliation
through public memory. According to van Marle, the only positive side
of this failure is that it irredeemably underscores the limits of all legal
and quasi-legal engagements with history.24 In spite of their different
starting points and expectations, van Marle nevertheless concludes
her critique of the TRC on the same post-nationalist note as Norval.
She suggests that the failure of the TRC to reconstitute a new,
reconciled, collective ‘we’ should in fact be regarded as one of its few
successes, as this failure ‘succeeded in exposing the plurality and
multiplicity of stories, memories and imaginations, of pasts and
futures’.25 Norval would probably agree, but still question why a
nationalistic model of identity, memory and reconciliation should
have been regarded as the measure of the TRC’s success — or failure
— to start with.
Norval’s reading of the TRC process, controversial as it may be,
underscores the vital importance which Snyman attaches to counter-
monumental strategies of memory in the post-apartheid context. The
similarities between their respective understandings of counter-
monuments need not be explored here in any more detail. Of greater
concern to the scope of this chapter is whether the counter-
monumental tradition can also serve as a model for the constitutional
engagement with the history of apartheid?

2.3 The Constitution as a counter-monument?

Snyman himself suggested the analogy between war memorials and

constitutions at a conference on legal interpretation in 1997.26 On
that occasion he claimed that there are at least two reasons why
constitutional scholars should take note of the aesthetic dynamics of

24 K van Marle ‘Law’s time, particularity and slowness’ (2003) 19 South African
Journal of Human Rights 239 243.
25 Van Marle (n 24 above) 245.
26 The background to the conference is explained in the ‘Introduction’ to the 1998
edition of Acta Juridica which was dedicated to the proceedings of the event (vii
to xiii).
 Chapter 5 75

war memorials and other memorialisation processes in society. The

first reason is that the Constitution itself forms part of that process.
According to Snyman, the preamble of the South African Constitution
openly embraces this fact:27
We the people of South Africa, recognise the injustices of our past; [and]
honour those who suffered for justice and freedom in our land. We
therefore, through our freely elected representatives, adopt this
Constitution as the supreme law of the Republic so as to [...] heal the
divisions of the past and establish a society based on democratic values,
social justice and fundamental human rights ...
With these words the Constitution undoubtedly seeks to ‘articulate
and guarantee a politics of memory’.28 Snyman’s reading of the
preamble is supported by a variety of constitutional writers who have
also drawn attention to the central role of memory in post-apartheid
constitutionalism. Karl Klare, for example, describes the ‘historical
self-consciousness’ of the Constitution as one of its most salient
features.29 Eduard Fagan speaks in this regard of the ‘constitutional
entrenchment of memory’.30 He has in mind the fact that the South
African Constitution contains a number of provisions which ‘seeks
expressly to capture the history and the context’ of the Constitution.
These include the preamble, but also the provision dealing with
languages, the application provision and the socio-economic rights
provisions:31
In the shoring of fragments of memory there has been no compromise.
The fragments act as reminders, constitutionally entrenched reminders,
of an unpleasant past and an unequal present. As such the courts will not
be permitted altogether to forget the past when interpreting and
applying the provisions of the constitution.
Once it is understood that the Constitution institutes a politics of
memory, in other words, that it can be read as either a monument or
a memorial, it becomes pertinent to ask how the constitutional
politics of memory relates to the different socio-moral imperatives,
which Snyman introduced in his discussion of the Women’s Memorial.

27
Snyman ‘Interpretation and the politics of memory’ (n 3 above) 314.
28
Snyman ‘Interpretation and the politics of memory’ (n 3 above) 312. Snyman
(315) was so convinced about the centrality of memory in constitutional
interpretation that he boldly stated: ‘It is not difficult to foresee that the findings
of the TRC will play a vital role in the interpretation of the constitution,
especially when the constitution is called upon to prevent the return of past
injustices.’ The TRC has now concluded its findings and its report. I am not aware
of any case in which any finding of the TRC has influenced, let alone had a vital
influence, on the interpretation of the Constitution. What has happened, instead,
is that the Constitutional Court itself began to write its own history of apartheid.
This historical meta-narrative has indeed played a vital role in the interpretation
of the Constitution.
29
K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 South
African Journal of Human Rights 146 155.
30 E Fagan ‘The constitutional entrenchment of memory’ in S Nuttall & C Coetzee
Negotiating the past: The making of memory in South Africa (1998) 249.
31 Fagan (n 30 above) 262.
76 Wessel le Roux

As we saw above, in the end this question pertains directly to the

representational status of the constitutional text and its normative
language.32 In this regard the history of the Women’s Memorial might
even serve as a warning to post-apartheid constitutional lawyers and
their academic counterparts — the second reason why Snyman
believes that lawyers should take note of that history. The text of the
Constitution as an apartheid memorial is subject to the constant pull
of historico-ethnic imperatives, just as the Women’s Memorial was —
thus the need for a counter-monumental constitutional discourse.
The urgency of Snyman’s call for a counter-monumental
constitutional politics of memory is borne out by the work of Pierre
de Vos.33 De Vos carefully explains how the Constitutional Court has
constructed a new national meta-narrative of apartheid and its
transformation, and how it has done so in order to restore the
apparent objectivity of constitutional interpretation. The history of
apartheid has become memorialised within the jurisprudence of the
Constitutional Court as a means of fixing the meaning of the
Constitution.34 According to de Vos, this renders the constitutional
discourse vulnerable as a politics of memory:35
By choosing a particular version of history, by making choices of whom/
what to include and whom/what to exclude, judges are therefore indeed
making deeply political choices. And in doing so, they are assisting in the
construction and maintenance of what it is legitimate to think of as
South Africa’s history: of whom/what must be included or excluded. [...]
There is no room in [the court’s] grand narrative for the stories of those
small and marginalised groups and communities which suffered in the
past, not because of racism and sexism, but because of other policies
and practices of the deeply undemocratic, socially conservative
apartheid state.36

32 I take this concern to be the essence of Johan van der Walt’s theory of post-
apartheid constitutionalism. See his reflections on the enormous nature of our
constitutional duty to honour the inviolable dignity of other people in J van der
Walt Tangible mais intouchable, la loi du tact, la loi de la loi (2002) 101-133.
33
P de Vos ‘A bridge too far? History as context in the interpretation of the South
African Constitution’ (2001) 17 South African Journal of Human Rights 1; P de Vos
‘South Africa’s Constitutional Court: Starry-eyed in the face of history?’ (2002) 26
Vermont Law Review 837; see also P Lenta ‘Looking sideways: Constitutional
interpretation, ethics and theory’ (2002) 12 Stellenbosch Law Review 3.
34 GE Devenish The South African Constitution (2005) 201 lists ‘the history of human
rights violations’ as a ‘source’ that must be consulted in the process of
constitutional interpretation.
35 De Vos ‘A bridge too far?’ (n 33 above) 21-22; 24.
36
De Vos ‘A bridge too far?’ (n 33 above) 24 and 33 refer in this regard specifically
to minority religious communities and the gay community. H Botha in ‘Equality,
dignity and the politics of interpretation’ (2004) 19 SA Publiekreg/Public law 724
argues along similar lines that the dignity-based interpretation of equality — itself
a latent effect of the paradigm of transitional justice — has resulted in the
privileging of discrimination based on race and sexual orientation, and has left
the court unable or unwilling to respond to more structural forms of
discrimination, such as those based on gender and/or class.
 Chapter 5 77

In the terms provided by Snyman’s analysis, one could say that the
memorial constitution, the constitution that recognises and
interpretively engages with past injustices, is itself in danger as a
politics of memory, precisely because it has come to embody a new
historico-ethnic imperative, at the expense of a universal categorical
imperative. De Vos himself remains positive that this reductive
engagement with history by the Constitutional Court can be resisted.
For a start, the important role of history in constitutional inter-
pretation must be recognised and embraced. However, the turn to
history must then not be undertaken on the basis of a ‘rigid, exclusive
and nationalistic version of history but the fragile, self-reflexive and
somewhat ironic history of the present’.37
De Vos launches his own plea for a post-structural historiography
and a post-national conception of memory, which nevertheless
resonates closely with Snyman’s understanding of counter-
monumental modes of remembrance. In the remainder of this essay I
wish to explore two further instances where Snyman's idea of a
counter-monumental constitutionalism has been taken up and
developed. The first is the architectural design of the new
Constitutional Court building; the second the recent work of a number
of constitutional writers on what has been called ‘memorial
constitutionalism’.

3 The Constitutional Court building as an apartheid

memorial

The Constitutional Court heard its first case on 15 February 1995 in a

commercial office building which had been temporarily leased and
converted for this purpose. The judges of the Court immediately
started looking around for a site where the Court could be
permanently housed. Interested parties presented various attractive
options to the judges, but an abandoned prison site in downtown
Johannesburg eventually got the nod. During the long years it was in
operation before it was closed down in 1983, the prison was known as
the Old Fort prisonor more popularly as ‘Number four’ or even
‘Ekhulukhuthu’, the deep hole.38 In the minds of many South
Africans, the prison complex was synonymous with the brutal
oppression of the apartheid state and the long, difficult struggle
against it. Thousands of participants in the Defiance Campaign
launched in 1952 were detained there. Nelson Mandela and his fellow
treason trialists were held in the awaiting trial block during 1956, as

37 De Vos ‘A bridge too far?’ (n 33 above) 33. It is unclear whether de Vos suggests
this post-structural mode of historiography as a form of theoretical constitutional
analysis or as a distinctive interpretive methodology.
38 L Segal et al (n 1 above). See also B Law-Viljoen (n 1 above) 32-45.
78 Wessel le Roux

were numerous activists during the state of emergency after the

Sharpville Massacre in 1960, and hundreds of teenagers after the
Soweto Uprising of 1976. The ‘Number four’ block and the women’s
gaol housed many common criminals, but also included many ordinary
citizens who were sentenced to imprisonment for petty apartheid
offences like violations of pass and influx control laws. The derelict
site therefore had a rich historical and cultural significance. The
judges thought that this symbolic capital would enable architects and
urban planners, through the design of the new building and
redevelopment of the site, to ‘physically dramatise the
transformation of South Africa from a racist, authoritarian society to
a constitutional democracy’.39
The concept for the site as a whole and the design requirements
for the Constitutional Court building itself were formulated and
carefully set out in the brief and conditions of the competition for the
project.40 The basic idea was to transform the prison complex into
Constitution Hill, a civic precinct, which would house the
Constitutional Court, a series of museums, and other constitutional
institutions like the Gender Commission. To make room for these
developments, an agreement was reached to demolish the awaiting
trial block. The remaining buildings on the site were to be
rehabilitated and converted into either office or museum space.
Heritage-related requirements pertaining to the existing buildings on
the site therefore played a big role in the competition brief.
Competitors had to pay particular attention to the ‘relationship
between the new Court building and the historic buildings that will be
retained on the site’.41 The overall design of the site and
Constitutional Court building had to be ‘appropriate to the character
and functioning of a major site of national memory’.42 The relation-
ship between the new Court building and the to-be-abolished awaiting
trial block was of particular importance. The brief indicated that the
oral history associated with the building would be recorded and
reflected in museum exhibits on the site. However, this was regarded
as ‘insufficient commemoration of the building and its history’.43 The
brief therefore required of competitors to
include a design proposal for some physical way of commemorating the
demolished Awaiting Trial block, by giving a special, identifiable place
on the site to an object, a space or to a retained or reconstructed
fragment of the existing building — such as the visitors’ room. This room
is particularly evocative of the brutality of the penal system.44

39
A Sachs ‘Judge and jury’ (1998) South African Architect 27 29.
40 Department of Public Works Brief and Conditions: Competition for the new
Constitutional Court building of South Africa (1997) 14-16.
41 Department of Public Works (n 40 above) 14.
42 As above.
43
Department of Public Works (n 40 above) 15.
44 As above.
 Chapter 5 79

Figure 3: Constitutional Court building and old prison stairwell

In contrast to the brutality which was conveyed by the existing

buildings on the site, it was said that the new building ‘should have a
welcoming, open and attractive character and make everyone feel
free to enter and feel safe and protected once inside’.45 The
character of the Court Chamber
should be dignified, harmonious, rational and humane, and should come
from careful attention to structure and light, and to proportions, colours
and textures. Ostentatious materials, ornate details and heavily imposed
symbolism should be avoided.46
Restrictions on the size of the building (8119 square metres) and
budgetary constraints (R31 million) underscored the non-monumental
character envisioned for the building.
The winning design responded creatively to this vision and design
requirements. The architects openly renounced any monumental
aspirations for the building and the site as a whole:47
In a democratic society civic buildings can either gain their symbolic
value by expressing the openness they represent or they can be

45 Department of Public Works (n 40 above) 17.

46 Department of Public Works (n 40 above) 18.
47
OMM Design Workshop & Urban Solutions Concept for the new Constitutional
Court building of South Africa (1997) 1.
80 Wessel le Roux

monuments to be seen from 20 km away as great domes, towers of light

or some other kind of dominant symbol. Grand dominant monuments are
only needed to represent victories of war, exclusivity in the face of
threat to an unpopular social system, economic or elite social power, or
the unattainable — places of God or the gods. The Constitution, and
therefore its house and precinct, have nothing in common with any of
these situations. The Constitution represents the opposite, and
alternative means should be found to achieve symbolic importance for
the building among the citizens of South Africa.

Figure 4: Constitutional Court Chamber and old prison walls

The symbolic significance of the building, or its democratic

character, is not expressed by celebrating the building’s ability to
impose its own self-contained image or its own self-sufficient
functionality onto the urban landscape — the ideals of neo-classical
and modernist architecture respectively. According to the architects,
the symbolic significance of the building must be sought in the manner
in which it integrates itself into the urban environment and stimulates
new experiential, spatial, cultural and ecological interactions.48
Given the history of the site, this integration had a definite memorial
dimension. Part of the design objective was accordingly to ‘achieve

48
W le Roux ‘From acropolis to metropolis: The Constitutional Court building and
South African street democracy’ (2001) 16 SA Publiekreg/Public law 139.
 Chapter 5 81

material association with the other buildings on the site, and those
who were detained there through various periods and political
systems’.49
The way in which the architects initially understood and
undertook the memorial integration of the building is highly
significant. The memorial integration is primarily achieved through
the positioning of the new building. The building is placed directly
next to the notorious ‘Number four’ block. The narrow space between
the two buildings creates a dramatic tension, which has been
exploited to create a central feature of the design, the Great African
Steps or the ‘seam between the native Gaol Museum, which
accommodates the memory of the past, and the Constitutional Court
exhibition space, which represents an evolving vision for the
future’.50 The Great African Steps translates the metaphoric language
in the postamble of the interim Constitution into built form. It fully
inscribes the Court as an apartheid memorial into the new meta-
narrative of transformation, which de Vos identifies, and criticises, as
the defining interpretive strategy in the jurisprudence of the
Constitutional Court.51
The memorialisation process once again succumbs to the allure of
a historico-ethnic imperative — to establish the unquestionable
legitimacy of the present Constitution and its human rights norms.
These norms promised redemption to those who were unjustly but
legally incarcerated here by providing their suffering with a national
history and a public cause. Necessary as this process might be, it is
also, as Snyman points out, a limited strategy of memory. The
memorialisation process becomes caught up in and reduced to a
struggle between different histories and different nations. The Old
Fort and its ramparts had been declared national monuments during
apartheid. This selective memorialisation of the complex rested on
the fact that the Old Fort was constructed as part of the fortification
of the Zuid-Afrikaansche Republic (ZAR) against the threat of British
invasion. The ideologues of the apartheid state claimed the Old Fort
as an exclusive symbol of their struggle for political freedom — and
used it as a powerful instrument of oppression. The inadequacy of our
cultural practices of memory, as analysed by Snyman, is powerfully
illustrated by the fate of the building as a national monument.
The development of Constitution Hill drew attention to the
unacknowledged historical significance of the rest of the complex.
The official response was as predictable as it was disappointing. The
rest of the prison complex was also declared a national monument.

49 OMM Design Workshop & Urban Solutions The Constitutional Court: A new symbol
for a new democracy (1997) 2.
50
OMM Design Workshop & Urban Solutions (n 47 above) 16.
51 See the discussion of his critique above.
82 Wessel le Roux

The re-writing of history in the name of a new historico-ethnic

imperative could begin. Could the memorial design of the
Constitutional Court building nevertheless still be read as a counter-
monument? The different ways in which the commemoration of the
awaiting trial block was understood and undertaken at different
stages of the design process might point to an answer. The creation of
Constitutional Square and the Constitutional Court building in place of
the demolished awaiting trial block was rightly undertaken as a
memorial activity: ‘This place commemorates positively a site where
lives were taken in the struggle and in the waiting.’52 In the initial
design the former building and its historical legacy were
commemorated by carefully collecting all its old bricks and tying
them into wire cages. These wire cages were then placed around
Constitutional Square to serve as seating for the people who now
move freely through the previously confined and policed space. In the
realised design the commemoration of the awaiting trial block takes
on a completely different character. It is no longer centred outside
the Court building, suggesting a clean break between the past and the
present, but has become a structural feature of the building itself.
The awaiting trial block has been demolished, but its four stairwells
retained. One of these stairwells is prominently located in the foyer
of the Court. The bricks of the demolished building are no longer kept
in cages on Constitutional Square, but have been cleaned and used to
build the walls of the Court Chamber.
The memorialisation process thus assumes a more disruptive
character in the final design. The dramatic and linear break between
the past and the present, which dominates the meta-narrative of the
postamble, is undermined. Any pretence of normative closure after
the injustice of apartheid is given up. The space for constitutional
discourse no longer arises as if from nothing after the total demolition
of the awaiting trial block. Rather, discourse is made possible because
of the permanent presence of the stairwell in the foyer, as if the
whole building hangs onto the stairwell on the slope of Constitution
Hill. It is only because and as long as we acknowledge the permanent
fact of our responsibility to the victims of the past that our search for
an appropriate constitutional response can have any ethical value.
The phrase ‘Welkom by B-skof’ on the wall of the old stairwell renders
the whole historico-ethnic constitutional undertaking ambivalent.53
The disruptive and potentially counter-monumental operation of
the stairwell is subtly reinforced by some of the artworks on display
in the exhibition space directly to the north of the foyer. Many of the
artworks are artistic meditations on the trauma of apartheid. For
example, the theme of incarceration and prison life is explicitly taken

52 OMM Design Workshop & Urban Solutions (n 47 above) 16.

53
W le Roux ‘Bridges, clearings and labyrinths: The architectural framing of post-
apartheid constitutionalism’ (2004) 19 SA Publiekreg/Public law 629 664.
 Chapter 5 83

up by Willem Boshoff in an untitled installation at the far end of the

exhibition space. The installation consists of a number of black
granite slabs, which meticulously record each day that Nelson
Mandela and his fellow Rivonia trialists spent in jail with a short,
engraved line. The representational minimalism of the work in the
face of the gravity of the injustice it recalls and commemorates is
striking. There is no heroism ascribed to the prisoners, nor is any
promise of redemption suggested. It is only the fact of injustice and
thus the fact of our obligation that are recorded. Boshoff’s
installation is an apartheid memorial in the tradition of the counter-
monument as it is understood by Snyman. The memorial does no more
than re-enact the pragmatics of ethical obligation in the face of
injustice.54 The work indisputably testifies about the fact of
obligation, but because of the lack or refusal of any figurative
expression, leaves the onlooker unable to enter any discourse about
the scope, content and limits of that obligation. All contextualisation
is postponed as an abstract limitless categorical imperative is
invoked.
A second installation of the exhibition serves equally powerfully
as a counter-monumental artistic mediation on the legacy of the past.
The blue dress by Judith Mason is a triptych which consists of a dress
sewn together from blue plastic bags and two paintings. The dress was
dedicated as a memorial to a victim of a particularly terrible act of
apartheid brutality after Mason heard the security operatives who
murdered her testify before the TRC. The following words are
inscribed on the dress:
Sister, a plastic bag may not be the whole armour of God, but you are
wrestling with flesh and blood and against powers, against the rulers of
darkness, against spiritual wickedness in sordid places. Your weapons
were your silence and a piece of rubbish. Finding that bag and wearing it
until you were disinterred is such a frugal, common sensical, housewifely
thing to do, an ordinary act. At some level you ashamed your capturers,
and they did not compound their abuse of you by stripping you a second
time. Yet they killed you. We only know your story because a sniggering
man remembered how brave you were. Memorials to your courage are
everywhere; they blow about in the street and drift on the tide and cling
to thornbushes. This dress is made from some of them. Hamba kahle.
Umkhonto.

54 For a more comprehensive discussion of the artistic expression of ethical

obligation see JF Lyotard The Inhuman (1991) 78-107. Lyotard relies here on an
analysis of the abstract expressionism of Barnett Newman.
84 Wessel le Roux

Figure 5: The Blue Dress and exhibition of land-

mark judgments

The inclusion of The Blue Dress in the exhibition has been

controversial and its presence in the Court remains conditional.
Justice Albie Sachs felt that the artwork was too harsh to be included
in the exhibition and requested the artist to soften its impact by
providing a redemptive context for both the dress and the event it
recalls. Judith Mason responded to the request by completing the two
paintings which make up the triptych. The paintings make use of the
figure of a dog to depict how the threat of an imminent attack is
successfully warded of. The paintings represent the beginning of a
story. They also represent, as Sachs himself seemed to have
understood, the beginning of the law and the story of our new
constitutionalism. The gap between the plastic bag dress itself and
the two paintings marks the differend that Lyotard locates in all
 Chapter 5 85

normative discourses. For the moment The Blue Dress hangs limp in
the motionless air above a celebratory picture installation of
landmark constitutional cases and human rights victories. The
juxtaposition of the two installations might be completely coin-
cidental. The result, however, is a powerful aesthetic expression of
the tensions between the monumental and memorial or counter-
monumental constitution, which is latent in the whole design of the
Constitutional Court building.

4 Memorial constitutionalism

Snyman suggested that legal scholars could learn valuable lessons

about the politics of legal interpretation from the public function of
war memorials in society. A close reading of the Constitutional Court
building as an apartheid memorial seems to confirm his view. In fact,
Snyman’s call for a constitutional politics of memory has significantly
influenced the development of post-apartheid constitutionalism.
Henk Botha was the first constitutional writer to comment on
Snyman’s call for a counter-monumental constitutionalism.55 Botha
relied on Hannah Arendt’s thinking to highlight the latent
republicanism underlying Snyman’s call. Arendt suggests that memory
work is necessary to sustain a public life of action beyond the
necessities of the private labour a life of public action which, because
of its plurality and performative nature, is inherently fragile.56
Because politics is radically performative in character, the memory
work which is needed to sustain it must continuously be undone.
Politics thus demands memory in a counter-monumental register.
Without this memorial self-reflexivity, politics will collapse into the
productionist paradigm, which has dominated the Western political
tradition from Plato to Auschwitz. On the basis of this Arendtian
analysis, Botha could argue that the struggle for memory against
forgetting cannot be understood in liberal terms as a struggle for
juristic, economic or negative freedom. It had to be understood as a
struggle for freedom as republican self-government. Memory reminds
us that our normative commitments and our world are not given a
priori, but are the products of particular historical struggles, which
must constantly be undone in order to sustain the possibility of
politics itself. The politics of memory and the freedom of political
self-government work against complacency and closure. Politics ...
and freedom implore and inspire us constantly to confront
authoritative texts and traditions with counter stories.57 At the same
time, they warn us not to romanticise a politics of counter stories.

55 H Botha ‘Constitutionalism and the politics of memory: A response to Professors

Rubenfeld and Snyman’ (1997) Acta Juridica 342.
56
H Arendt The human condition (1958) 222.
57 Botha (n 55 above) 343.
86 Wessel le Roux

The politics of memory is never innocent. Botha explains this point

with reference to the decision in AZAPO v President of the Republic
of South Africa:58
The struggle against forgetting entangles us in its own spiral of violence.
[...] The decision in Azapo was violent, not only in the sense that the
families were denied justice, but also because of the way international
law was swept aside by the court in favour of municipal law. And yet I
am more or less in agreement with the outcome of the case. My point is
not that Azapo was decided incorrectly, but rather that it is impossible
to escape the violence of legal interpretation; that the acts by which we
constitute ourselves a people, are inherently violent.
The constitutive violence of the constitutional order can strictly
speaking not be remembered in any nationalistic sense of the term; it
can simply not be represented in terms of the available historico-
ethnic imperatives of that same order. As Snyman points out above,
it can only be registered as the sublime intensification of the limits of
the law, and thus of a limitless obligation beyond the available norms
of the existing legal order. This is the point Lyotard drives home with
his distinction between justiciable differences (the subject of
litigation) and the non-justiciable differend. This is also what the
designers of counter-monuments seek to make clear about memory as
a representational or archival enterprise.59
The idea that constitutional judgments can be constitutionally
correct and fully justified, yet still remain violent and unjust, is also
depicted by Lourens du Plessis as the essence of the constitution as an
exercise in collective memory.60 Du Plessis suggests that it is easy,
and sometimes necessary, to forget the founding violence of the
South African constitutional order and to celebrate the fall of
apartheid as an internationally successful human rights victory. On
the basis of Snyman’s distinction between monuments and memorials,
one could on such occasions speak of the constitution as a
monument.61 However, we should never completely forget that our
constitutional order also has a memorial dimension.62 Like Snyman
and the counter-monumental designers, du Plessis also explicitly links
the memory in this non-monumental mode to the idea of universal
obligation and responsibility:63
The Constitution is the supreme law of the Republic of South Africa, but
it is not an overarching, all-encompassing super law. This restrained

58
Botha (n 55 above) 346; AZAPO v President of the Republic of South Africa 1996 8
BCLR 1015 (CC).
59
For a related understanding of the constitution as archive see K van Marle
‘Constitution as archive’ in S Veitch (ed) Law and the politics of reconciliation
(2006) 215.
60
L du Plessis ‘The South African Constitution as memory and promise’ (2000) 11
Stellenbosch Law Review 385.
61 Du Plessis (n 60 above) 386.
62
Du Plessis (n 60 above) 393.
63 Du Plessis (n 60 above) 388. Emphasis in the original.
 Chapter 5 87

Constitution is the Constitution as memorial — a written law-text that

does not profess to constitute the moral high ground of justice all by
itself; instead it reminds us of our pledge (and provides us with some
legal means) to achieve social justice. The human obligation to do
justice cannot be assigned to any law-text, not even the Constitution.
The refusal of one official centralised point of constitutional
interpretation, and one official centralised national meaning of the
constitution is central to du Plessis’s idea of the restrained or
memorial constitution. The constitutional doctrines of ‘subsidiarity’
and ‘the open community of constitutional interpreters’ are therefore
crucial aspects of memorial constitutionalism.64 Du Plessis’s under-
standing of the term enables us to develop a critical perspective on
the way in which constitutional interpretation has been
operationalised in the post-apartheid context. It thus provides a
necessary link between theoretical exposition and methodological
engagement. For example, the Constitutional Court’s preference for
remedial interventions, in terms of section 172 of the Constitution, at
the cost of teleological interpretations, in terms of section 39(2) of
the Constitution, suddenly appears as yet another attempt to limit the
civic engagement with constitutional responsibility, to render citizens
passive as constitutional spectators, and to centralise and nationalise
constitutional meaning and memory.65 These same tendencies are of
course at play in the historico-ethnic memorialisation of history which
counter-monuments are designed to resist. However, it is finally not
the centralisation of constitutional meaning that lies at the heart of
du Plessis’ counter-monumental or memorial constitutionalism. It is
rather the very possibility of constitutional meaning or meaningful
constitutionalism after the history of apartheid itself.
With this we return to the problem of constituting violence and
the post-apartheid legal order, which Botha found at work in the
AZAPO judgment. Du Plessis refers to two other cases, which have
much of the same effect. The first is that of Soobramony v Minister
of Health Kwa-Zulu Natal66 and the second that of Government of the
RSA v Grootboom.67 In both cases the Constitutional Court denied
direct relief — life-saving medical treatment in the first case, and
protective shelter in the second — to the parties involved. According
to du Plessis, both cases are constitutionally correct or at least
defensible decisions. He nevertheless continues as follows:68
It is hard not to have sympathy with Mr Soobramoney and his family on
humanitarian grounds — and precisely this illustrates the dilemma of

64
Du Plessis (n 60 above) 388-389.
65 W le Roux ‘Undoing the past through statutory interpretation: The Constitutional
Court and the marriage laws of apartheid’ (2005) 26 OBITER 526.
66 Soobramony v Minister of Health Kwa-Zulu Natal 1998 1 SA 765 (CC); 1997 12
BCLR 1696 (CC).
67
Government of the RSA v Grootboom 2001 1 SA 46 (CC).
68 Du Plessis (n 60 above) 391-392.
88 Wessel le Roux

making sense of the Constitution, either as a monument or memorial, in

support of individuals directly in need of rudimentary relief. The
Soobramony case is a Mahnmal to starry-eyed constitutional over-
optimism.
The post-apartheid constitutional order is founded on the gap
between humanitarian (or social) justice and constitutional (or
political) justice.69 This gap prevents the normative closure of the
constitutional order onto itself, and establishes the idea of
constitutional senselessness as a central feature of post-apartheid
constitutionalism. It is thus not only the centralisation of
constitutional meaning, but its very senselessness that drives du
Plessis’s version of memorial constitutionalism.
Karin van Marle has recently developed a version of memorial
constitutionalism which is closely related to that of du Plessis.70 Van
Marle relies on Mahmood Mamdani’s distinction between political and
social reconciliation to further explicate the idea of a gap between
humanitarian and constitutional justice to which du Plessis refers.71
She presents her own understanding of the memorial constitution as
a form of resistance against the closure of political reconciliation, and
thus the constitutional discourse as such, in post-apartheid South
Africa. She takes Christof Heyns’ struggle theory of rights as one
example of such closure.72 This theory attempts to restrict politics to
the available (historico-ethnic) human right norms within the existing
constitutional order, as opposed to van Marle’s preferred
understanding of politics as a permanent struggle between the
existing order and its constitutive outside.73 Given the gap between
constitutional and social justice, van Marle warns against the
enthusiastic embrace of the new human rights culture in South Africa,
and the shift from revolt to litigation, as Lyotard understands the
term, and which the move implies.

69
The contrast between social and political justice is central to Mahmood
Mamdani’s critique of post-apartheid constitutional law and plays a key role in
Karin van Marle’s understanding of memorial constitutionalism (see further
below).
70 K van Marle ‘Lives of action, thinking and revolt — A feminist call for politics and
becoming in post-apartheid South Africa (2004) 19 SA Publiekreg/Public law 605.
71
Van Marle (n 70 above) 610-612.
72 Van Marle (n 70 above) 612-618.
73
At this point reference must also be made to the work of Anel Boshoff who
explicitly relies on du Plessis’s understanding of the tension between the
constitution as monument and memorial in order to criticise attempts in
constitutional discourse to essentialise and close both the past and the present
onto themselves. Boshoff argues, by contrast, that the past and the future are
not simply related in a temporal or linear sense, but rather in an ethical or
constitutive sense. See A Boshoff ‘Constitutional interpretation: Between past
and future’ (2001) 12 Stellenbosch Law Review 357 368.
 Chapter 5 89

5 Conclusion

The work of Johan Snyman and Aletta Norval on the importance of

counter-monumental strategies of memorialisation in post-apartheid
South Africa, Snyman’s suggestion that the constitutional duty to
remember should also be approached as such a strategy, the
memorial or counter-monumental architecture of the new
Constitutional Court building, and the appropriation of this aesthetic
ideal by an increasing number of South African constitutional scholars
combine to form a challenging perspective on the role of memory in
constitutional interpretation. The two existing paradigms which have
thus far been employed to come to terms with the constitutional
entrenchment of memory in post-apartheid law, the paradigm of
transitional justice74 and the paradigm of transformative justice,75
are thereby provided with an important supplement.76
The constitutional duty to remember must now be understood
from three distinct but related perspectives. Each perspective entails
a unique understanding of what an adequate constitutional politics of
memory would require. The paradigm of transitional
constitutionalism pursues an engagement with history in order to
secure reconciliation and restorative justice — the preamble to the
Constitution recognises the injustices of our past so as to ‘heal the
divisions of the past’. The paradigm of transformative justice pursues
an engagement with history in order to effect a fundamental socio-
economic transformation of society — the preamble of the
Constitution recognises the injustices of our past so as to ‘establish a
society based on social justice’. The paradigm of memorial
constitutionalism serves as a counter-balance to these two large-scale
constitutional projects. Both the potential nationalisation of
constitutional reconciliation and the potential instrumentalisation of
constitutional transformation are resisted by the ethical concerns of
memorial constitutionalism. The paradigm of memorial consti-
tutionalism pursues an engagement with history, not as a search for
truth or as a search for justice, but as a search for the minimum norms
of political responsibility and the very possibility of political or
constitutional responsibility as such — the preamble of the
Constitution recognises the injustices of the past ‘so as to’ ground its

74
See, for example, R Teitel ‘Transitional justice genealogy’ (2003) 16 Harvard
Human Rights Journal 69.
75
See, for example, K Klare (n 29 above) 146; M Pieterse ‘What do we mean when
we talk about transformative constitutionalism’ (2005) 20 SA Publiekreg/Public
Law 155.
76
I do not wish to imply that these three paradigms can be easily distinguished or
even partially separated from each other. There are many examples where the
various paradigms overlap and interact. See R Gordon ‘Undoing historical
injustice’ in A Sarat & T Kearns (eds) Justice and injustice in law and legal theory
(1996) 35.
90 Wessel le Roux

normative commitments. Memorial constitutionalism highlights the

aporetic structure of the preamble and the differend it contains. It
reads the preamble not as is conventionally the case, as a source of
substantive constitutional values, but as a counter-monumental text.
This reading begins by problematising the nationalistic and republican
‘we’ of the opening line.
It is not the meaning of constitutional justice (restorative or
transformative) which is the central concern here, but rather the
possibility of a meaningful and more or less stable conception of
constitutional justice as such; the possibility of a more or less stable
‘we’ who can embody both responsibility and response in itself. From
this perspective the constitutional duty to remember no longer
grounds any grand, historical project. It introduces a sense of irony
into the value-based constitutional discourses of post-apartheid
nationhood by reminding these discourses that the past can never be
overcome, neither in the mode of a reconciliation, nor in the mode of
a transformation. As Johan Snyman has written and I have quoted
before, but will quote again:77 ‘The politics of memory is never
completed, because the norm for what we have to do today can never
be stated in terms clear enough.’

77 Snyman ‘Interpretations and the politics of memory’ (n 3 above) 337.

PART 2: REPAIRING THE
PAST, RESTORING THE
FUTURE
 6 Reading and writing archives: The
TRC, big business and reparations
in post-apartheid South Africa

Jaco Barnard

‘The Horror of that moment,’ the King went on, ‘I shall never, never
forget!’
‘You will, though,’ the Queen said, ‘if you don’t make a memorandum of
it.’
... the King took an enormous memorandum book out of his pocket, and
began writing ... [Alice] took hold of the end of the pencil, ... and began
writing for him.
The poor King ... panted out ‘My dear! I really must get a thinner pencil.
I can’t manage this one a bit: it writes all manner of things that I don’t
intend — ’
[S]aid the Queen, looking over the book, ‘That’s not a memorandum of
your feelings!’1

1 Excursion

In the introduction to what eventually became Derrida’s famous

contention that writing is both poison and cure2 is written the
following:
To a considerable degree we have already said all we meant to say. Our
lexicon at any rate is not far from being exhausted. With the exception
of this or that supplement, our questions will have nothing more to name
but the texture of the text, reading and writing, mastery and play, the
paradoxes of supplementarity and the graphic relations between the
living and the dead: within the textual ...3

1 L Carrol ‘Looking-glass house’ in L Carrol & H Haughton (eds) Alice’s adventures

in Wonderland and through the looking glass (1998) 130-131.
2
JKA Smith Live theory Derrida (2005) 95.
3 J Derrida Dissemination trans B Johnson (1981) 71.

93
94 Jaco Barnard

The outcome of a ‘conventional’ or ‘superficial’ — I venture to say

a ‘quick’ — reading of the above sentence might simply be a finding
that when a text has been written, the author, or the ‘we’ that the
author co-opted intentionally or otherwise,4 has said all that was
meant to be said about the particular subject matter of the text.
This, however, immediately opens up to another reading of what
Derrida is writing here. I am guided to this ‘second’ reading through
an assertion in a passage from the same work quoted above: ‘A text
is not a text unless it hides from the first comer, from the first glance,
the law of its composition and the rules of its game.’5 Is it thus not
also true that now that there is a text, now that the author has
written something down, we – and this is of course already a different
or another ‘we’ — can, to a consider-able degree — that is to say to a
degree that we are able to consider, judge and criticise — interrogate
all that the ‘we’ meant to say? And do these performatives —
‘consider’ ‘judge’, ‘criticise’ — not, if anything else, first and
foremost signify attempts to bring forth, that is, make present, what
is hidden (jealously guarded) by the text? For this reason, our
questions will indeed have ‘nothing more to name but the texture of
the text, reading and writing, mastery and play, the paradoxes of
supplementarity and the graphic relations between the living and the
dead’.6 That this is the case, I believe, is not bad news. There may
even be in this ‘nothing more’ a stroke of luck and an infinite
responsibility — that it allows nothing less than this naming or
exposure that is always preceded by the question: ‘What hides here?’
This chapter is troubled by the consider-able degree to which a
certain nameable ‘we’ has already said all that it meant to say. The
‘we’ that I write of here will be the South African Truth and
Reconciliation Commission (TRC) and the ‘all’ that this ‘we’ meant to
say will be the TRC’s text (report) on the role of business in
apartheid.7 In one way, I intend the use of ‘business’ here in a very
narrow sense. I interrogate the TRC’s writing of and on the role of
business — corporate entities and economic transaction — in
perpetuating the disaster that we have named apartheid — that is the

4 See C Clarkson ‘Who are “we”? Don’t make me laugh’ (2007) 18 Law and Critique
361-373. Clarkson raises the problematic question of the ‘we’ as a linguistic
shifter in the context of disembodied communities and the desire to ‘belong’ in
post-apartheid South Africa: ‘“We” simultaneously announces the presence of a
speaking position, and the absence of those co-opted into it’ 370. She also raises
van Roermund’s argument that the ‘we’ rests on political presuppositions
‘involved in doing something together’ 371. Clarkson concludes that ‘the
extraordinary potential of literature ... [is that] the text retraces the limits of
“we”, and in the process it challenges our assumptions about the location and the
limit of the self’ 373.
5
Derrida (n 3 above) 69.
6 Derrida (n 3 above).
7 Truth and Reconciliation Commission Report vol 4 (1998) ch 2 (TRC Report 1998);
Truth and Reconciliation Commission Report vol 6 (2001) sec 2 ch 5 (TRC Report
2001).
 Chapter 6 95

extent to which economic transactions during apartheid created and

maintained the dead labour (capital) that gave apartheid life.8 But
this narrow interpretation of ‘business’ again points to another sense
in which the word ‘business’ is used — the sense that is generally
meant when we talk about unfinished business or business as usual –
the sense that describes an attitude, a pathology. I am interested in
the extent to which all that this ‘we’ has meant to say can be brought
to bear on the situation of present-day South Africa. What, if
anything, did the TRC’s writing of and on the role of business in
apartheid contribute to what was the rationale for the TRC in the first
place? I consider this to be unfinished business itself. The wider sense
of the phrase ‘unfinished business’ will hopefully emerge from the
tentative conclusion I draw here, namely that the business of
apartheid, the harm that it inflicted, the deaths it caused, will
continue to haunt the ‘business as usual’ pathology of post-apartheid
South Africa; until such time as ‘we’ — that is those who remain
concerned with Truth and Reconciliation — operationalise the
potentialities that lie in discovering that which the text, in order to
be a text, hides away.
I have already mentioned that there are indeed two texts that
represent the TRC’s work on the apartheid business sector. I argue
here that these texts are in no way ‘special’, or ‘untouchable’. Of
them we can, we are allowed to say all that is to be said about texts,
specifically for my purposes that these texts are texts because they
hide the law of their composition and the rules of their game. Derrida
reminds us that the law and the rules of the text’s composition are
not ‘harboured in the inaccessibility of a secret’.9 And for this reason
we cannot expose only that a text says all that it means to say, but
we can also say or write what it does not (mean or intend) to say. This
is possible because of the very considerability of these texts. In fact,
the text never escapes from the law that it hides. That which it hides,
as I will tentatively suggest, ruins and contaminates it from within.10

2 Outside happening(s)

Let us be reminded, before we proceed, that writing — the production

of text — is indeed always marked by death,11 always already destined
to walk the treacherous fault line between text and open space, the
included and the excluded, which is most of the time also the

8
TRC Report 2001 (n 7 above) 152. The report describes how ‘the blueprint for
“grand apartheid”’ was provided by the private activity of the mines — how
apartheid ‘was not an Afrikaner state innovation’.
9
Derrida (n 3 above) 69.
10 See J Derrida ‘Force of law: “The mystical foundation of authority”’ (1990) 11
Cardozo Law Review 921 1007.
11
M Naas ‘History’s remains: of memory, mourning and the event’ (2003) 33
Research in Phenomonology 75.
96 Jaco Barnard

occluded. No writing, including the archive writing of the TRC,

escapes this fate. Simultaneously, we have been told that ‘[t]here is
nothing outside the text’12 — the text that is always marked by death.
John Caputo writes that Derrida’s 1967 statement, ‘there is nothing
outside the text’, is ‘one of the most thoroughly misrepresented
utterances in contemporary philosophy’.13 Many readers came to
understand ‘nothing outside the text’ as the assertion that all that
matters is language. In a defence of his work, Derrida himself
remarked that he was actually quite surprised that it ever came to be
understood as a declaration that there is nothing to be done beyond
or besides linguistic study.14 Deconstruction as the critique of
[phallo]logocentrism, said Derrida,
is above all else the search for the other ... If deconstruction really
consisted in saying that everything happens in books, it wouldn’t deserve
five minutes of anybody’s attention ... to want to confine it to linguistic
phenomena is the most suspect of operations.15
Everything does not happen in books. Books, reports, texts, in the
end, provide us only with traces of the everything that does not
happen in books. And these traces open up or expose the relationship
‘of an inside to an outside: spacing.’16 It is as if they point to the open
spaces between them, calling the imagination to its ‘work of shaping
and reshaping’.17
Closely related to text production — production that also produces
the open spaces in texts — are the words ‘forgetting’ and
‘remembering’. In the context of the texts of the TRC, I would add the
word ‘disaster’; for was the TRC’s work not in the end a remembering
and forgetting — and thus a writing — of apartheid, the singular and
untranslatable disaster?18
Verné Harris describes the TRC’s writing as an exercise in
remembering, which he describes as ‘a quintessentially archival
exercise’.19 Contemporaneously, the function of the TRC was also
described as the injunction to close ‘a horrendous chapter in the life
of our nation’.20 This is the urge to, or the imperative that we, forget,

12
J Derrida Of Grammatology (1967) 158.
13
J Caputo Deconstruction in a nutshell: A conversation with Jacques Derrida
(1997) 78.
14
P Baker Deconstruction and the ethical turn (1995) 16.
15
As above.
16 Derrida (n 12 above) 70.
17
V Harris ‘A shaft of darkness: Derrida in the archive’ in C Hamilton et al
Refiguring the archive (2002) 61 75.
18 See generally J Derrida ‘Racism’s last word’ (1985) 12 Critical Inquiry 290 on
apartheid’s resistance to translation.
19 V Harris ‘Contesting remembering and forgetting: The archive of South Africa’s
Truth and Reconciliation Commission’ (2002) Innovation 1 7.
20
Postamble of the Constitution of the Republic of South Africa Act 200 of 1993; D
Omar The Truth and Reconciliation Commission: Justice in transition (1996) 2.
 Chapter 6 97

as soon as possible.21 I, for one, find it most disturbing that TRC

triumphalists — I would go so far as to say monumentalists, and in
most cases I would say that they are also somnambulists — have in
recent times hastened to tell anyone who dares to take issue with the
hidden meanings in the TRC’s Report that the TRC was an exercise in
remembering more than an exercise in forgetting. These ‘-alists’
seem to have themselves forgotten the emphasis on forgetting during
the time of the TRC — the emphasis on just getting on with it.
I believe that it cannot and should not be denied that the TRC’s
Report, as an archive of South Africa’s apartheid past, will always
have represented both remembering and forgetting — which is
another way of saying that an archive is always already both memorial
and monumental and should as such be understood as a work of
mourning.22 Again, this is not bad news — or at least it is bad news
only for those who find in the assertion ‘we could not write history’
or ‘the TRC was not perfect’ an alibi not to take responsibility for (the
failures of) the TRC, which means that in a specific way, they do no
longer wish to mourn.
In the end, the TRC’s work could only have been – I venture to say
it should have been — an exercise in forgetting always with the
possibility of remembering and, perhaps more importantly,
remembering always with the possibility of forgetting.23 One could
thus say that the TRC had to write down (remember) the past so
vividly that reading the text would produce what Derrida calls a
‘quasi-hallucination of the violence’24 of and during apartheid. It is
precisely because there is no remembering that cannot become
forgetting that only this vivid remembering would make it possible to
forget in the present because it would allow remembering in the
future, which is another way of saying that the TRC’s function was to
contribute to the realisation of reconciliation in South Africa.
Whether this could really be expected from a commission subjected
to institutionalised and legalised process25 is questionable, and it is
for this very reason that the TRC and its gatekeepers should have been
more attentive to and reflexive in recognising and acknowledging this
failure. Paradoxically, as van Marle points out, it is this very failure
that heightens the multiplicity of versions and plurality of accounts.
It is also this very failure that commands responsibility.26
Harris contends that government’s ultimate concern with the TRC
was that it should produce an archive that conforms to the ‘new

21
J Derrida ‘Archive fever in South Africa’ in Hamilton et al (n 17 above) 38 54.
22 As above.
23
Harris (n 17 above) 61 75.
24 Derrida (n 21 above) 38 78.
25 See K van Marle ‘Law’s time, particularity and slowness’ (2003) 19 South African
Journal on Human Rights 239.
26 Van Marle (n 25 above) 244-245.
98 Jaco Barnard

history of the new South Africa’27 it was writing. It is in this way and
to this extent that the TRC had to ensure that the ‘we’ will have said
everything it meant to say. One must remember that the TRC did not
only record the past, but, more importantly, it constituted the past
‘in view of a future which retrospectively, or retroactively, gives [the
past] its so-called final truth.’28
Below we will aim to expose this aspect by pursuing the practice
of slowness developed by Karin van Marle and others.29 Van Marle
describes the ethical aim of this strategy of delay as the endeavour
‘to expose the violence inherent in institutional and legalistic
approaches’.30 Allow me to be clear that I consider it as given that the
TRC was exactly such an institutionalised and legalised process
capable of producing the same violence that is brought into any
institution or legal process, simply because the TRC was an
institution, a legalisation, a creature of statute.

3 Slowly approaching the silence

We must pick our way among the remains, wrestle with and conjure the
ghosts of the past, ply them with patient importunity in order to
construct the best story we can.31
Van Marle links her exposition of a ‘strategy of delay’ to Ijselling’s
assertion that ‘deconstruction draws our attention to the “unsaid”, to
the open spaces in a text’.32 With these tools let us turn now to the
consideration of all that the ‘we’ meant to say. This consideration can
proceed only through a ‘reading’ of both the text and its silences
represented in open spaces. These silences are ‘walled up and walled
in’33 the archive — in the archive, for they are neither exterior to the
archive nor exterior to the language of the archive. The way we ‘read’
the silences, however, can proceed only through an affirmation of
Derrida’s assertion that everything indeed does not happen in ‘the
book’. To read the silences would entail that we also take
responsibility for them — we therefore have to venture outside the
book or, in this context, the Report, but that can happen only where
we ‘take writing first’.34
Consider the following passage from Volume 4 of the TRC’s
Report:

27 V Harris ‘The archive, public history and the essential truth’ in Hamilton et al (n
17 above) 177.
28
Derrida (n 21 above) 38 42.
29 Van Marle (n 25 above).
30
Van Marle (n 25 above) 250.
31 JD Caputo The prayers and tears of Jacques Derrida (1997) 247.
32 Van Marle (n 25 above) 250.
33
Derrida (n 10 above) 943.
34 Derrida (n 3 above) xi.
 Chapter 6 99

The life assurer Sanlam accepted that its Afrikaans origins ‘could have
contributed to and facilitated cordial business relationships with
government, especially after the NP came to power in 1948 ...’ saying
that, ‘successful marketing implies sound relationships with decision-
makers.’ However, apart from having easier access to government,
SANLAM said, ‘it did not enjoy preferred status with the NP.’ Sanlam
claimed that it became the first large company to redress economic
imbalances when it sold the life assurer Metropolitan Life to black
investors in 1993. Sanlam also created a development fund to contribute
to empowerment ... The ANC submission identified the ‘spectacular
economic growth’ of Afrikaner controlled companies like Sanlam, which
were ‘especially favoured by the apartheid regime’. Sanlam’s assets
rose from R30 million in 1948 to R3.1 billion in 1981, while companies
over which it exercised effective control had assets worth R19.3
billion.35
The above passages contain all of the Commission’s writing on
Sanlam. Let us turn now to the silences in this engagement.
An apparent instance of silence as absence is the absence of the
Commission’s own judgment on the contradictions that are apparent
from the extracts of the submissions it cites. The above contradiction
regarding Sanlam’s involvement in apartheid begs answers to
questions such as: ‘So who got it wrong? Sanlam, the ANC or both?’ Or
better still, ‘Who was untruthful in relating these events, who
distorted the past — Sanlam, the ANC or both?’ The Commission made
no specific finding in this regard.
Another instance of silence exists in that which the above passage
fails to mention, that which is more or less, while having been
recorded, ‘off the record’ for purposes of the Report. For instance,
the TRC fails to mention that Sanlam did not just have Afrikaans
origins, but was itself founded in 1918 by National Party founder, WA
Hofmeyer.36 It had the specific aim of furthering Afrikaner nationalist
interests. The Report is silent about the records that conclude that
Sanlam directly benefited from the Sharpeville Massacre when, in the
exodus of foreign capital which followed Sharpeville, Sanlam bought
— at bargain basement prices — large quantities of shares in
companies across the board.37
The Report does not mention that in the early 1970s, Wim de
Villiers, Sanlam’s vice-chair and a key member of the Cape NP
establishment and PW Botha’s mentor, championed ‘cooperation
between the public and private sector in an overarching strategy to

35 TRC Report 1998 (n 7 above) 30-31.

36
AE Goldstein ‘Big business and the wealth of South Africa: Policy issues in the
transition from apartheid’ (2000) 5 n 1 available at http://www.ciaonet.org/wps/
goa03/goa03.pdf#search=%22wa%20hofmeyr%20sanlam%20founder%22 (accessed
10 October 2006).
37 CH Feinstein An economic history of South Africa (2005) 178-179.
100 Jaco Barnard

ward off Marxism’.38 It was thus more than symbolic that in 1977
Steve Biko met his death at the hands of police torturers in room 619
on the sixth floor of the Sanlam Building in Port Elizabeth39 — a fact
the Report also does not mention. The Report does not engage the
horrid irony in Sanlam’s first point in its TRC submission, namely that
it did not actively participate in the struggle against apartheid
because of the violent nature of the struggle.40
Other instances of silence exist in the many absences of sectors
and industries that failed to respond to the TRC’s call for submissions.
Among the most important count multinational oil companies BP and
Shell as well as the South African Agricultural Union.41 In both
instances, when these entities failed to respond to the invitation for
submissions, the Commission, instead of calling them to account,
simply confirmed that they would not be called to attend the special
hearings on business.42 It did not subpoena these businesses and as a
result the official ‘archive’ on the role of business does not contain a
single word of the complicity of these companies with the apartheid
government through the notorious Equalisation Fund, established by
Chris Heunis.43
The way in which the Commission dealt with Armscor is exemplary
of the occlusion represented by the silences of the archive. Despite
written and unwilling oral submissions,44 as well as a lengthy and
potentially damning submission by the Centre for Conflict Resolution
(CCR), the activities of Armscor are dealt with in a brief section in
Volume 4 of the Final Report. In the codicil, it is absent.
In what was written down about Armscor the Commission
addressed the question whether it was credible to argue that Armscor
innocently thought its products were going to be used to fight a
foreign aggressor.45 The Report states that the scales should have
fallen from the eyes of all perceptive South Africans when the army
rolled into the townships. In this regard the Commission simply noted
that ‘[u]nfortunately no evidence was presented ... about the
mindset of arms manufacturers’.46 Were the mindsets really not

38
N Dixon ‘South Africa: Billiton: A corporation founded on apartheid plunder’
Greenleft Weekly available at http://www.greenleft.org.au/back/2001/445/
445p23.htm (accessed 1 December 2005).
39
As above.
40 Sanlam rejected violence of anti-apartheid struggle, TRC told SAPA 13 November
1997.
41
Some glaring absences in business submissions to TRC: Tutu SAPA 11 November
1997.
42
ANC Newsbrief 8 November 1997.
43
R Hengeveld & J Rodenburg (eds) Embargo apartheid’s oil secrets revealed (1995)
21.
44
It was reported in the press at the time that the TRC had to threaten Armscor
with subpoenas before it finally decided to testify in the hearings. See http://
www.dispatch.co.za/1997/11/12/page%204tr.htm.
45
TRC Report 1998 (n 7 above) 37.
46 As above.
 Chapter 6 101

evident in light of the fact that Armscor did not cease its arms
production once the army rolled into the townships?
The vast activities of the business that armed apartheid are
treated in seven paragraphs — again, mostly quotes from the
submissions.47 From the point of view that Armscor was ‘the pivot’ on
which the collaboration between business and PW Botha’s
securocratic government hinged, this must be unacceptable.48 Given
the many defenceless, innocent lives Armscor’s products brought to
an end, it is reprehensible. One cannot but guess the extent to which
this occlusion of Armscor’s role in apartheid was part and parcel of an
attempt not to draw too much attention to Armscor at a time it was
negotiating what later became its notorious arms deal.
The CCR submissions further provided staggering evidence in
support of its central argument that the ‘business community,
through their extensive involvement in local arms production ...
provided ... material means for the preservation and defence of
apartheid’.49 These submissions pointed out, inter alia, that Armscor
never undertook the development and production of arms in its own
name.50 Instead, it relied on private sector facilities for its arms
production. The CCR submission claimed that, by 1982, between 2 000
and 2 500 companies (ultimately controlled by only Old Mutual, Anglo
American and Anglo Vaal) acted as suppliers, contractors and
subcontractors of Armscor.51 However, Armscor executive chairman,
Ron Hayward, claimed in the oral submissions to the TRC that a ‘fairly
limited’ group of private companies was involved in the arms industry
during the apartheid years. Asked about profit taking by Armscor and
private companies, Hayward said: ‘I honestly doubt there was
excessive profit taking ... because we had to remain internationally
competitive ... I can't say whether some businesses made more money
out of it. To my knowledge they did not.52
Perhaps the silence that speaks loudest is to be found in the fact
that the 1998 Report of 3 500 pages devoted a mere 40 pages in the
fourth volume53 to the role of business — business which according to
the TRC provided the blue-print for grand apartheid.54 In the 2003
codicil (volume 6), consisting of 823 pages, the chapter entitled

47 TRC Report 2001 (n 7 above) 36-37.

48
Truth and Reconciliation Commission Business sector hearings transcript (1997)
‘Day 1 Prof Sampie Terreblanche’ available at http://www.doj.gov.za/trc/
trc_frameset.htm.
49
L Nathan et al ‘Submission to the Truth and Reconciliation Commission business
sector hearing’ (1997) 11.
50 L Nathan et al (n 49 above) 2.
51
As above.
52 Truth and Reconciliation Commission Business sector hearings transcript (1997)
‘Day 1 R Hayward’.
53
TRC Report 1998 (n 7 above) 18-58.
54 n 7 above.
102 Jaco Barnard

‘Reparations and the Business Sector’ (chapter 5) covers 15 pages

which translates into 1,8 per cent of the codicil.55
But the silence with which I conclude remains as an unspeakable
one:
The COSATU submission also recalled the notorious [Gencor] Kinross
mining disaster, the largest accident in the history of gold mining in
South Africa. On 15 September 1986, 177 workers were killed as the
result of a polyurethane fire. The submission records the shocking way in
which the mine reacted to the disaster:
The mine only publicised the accident at 15h00, although it had
occurred at 09h00. Its initial reports stated that thirteen workers had
died, although the mine was aware that 177 workers had died. Shortly
after the disaster, the names and personal details of white miners were
released by the company. The black miners who had died were
identified to the world as: ‘Sotho 45, Shangaan (Mozambican) 21,
Pondo 20, Hlubi (Transkei) 6, Venda 1, Xhosa 29, Tswana 14, Malawi 15,
Pedi 1’.
Mining is, of course, an inherently dangerous occupation. However, there
appears to be some evidence that profitability ranked higher than
people’s lives — as evidenced by the asbestos scandal and the continued
use of polyurethane in mines long after the dangers had become known.
It is regrettable that more details were not forthcoming on health and
safety issues from the Chamber of Mines or the Anglo American
Corporation.56
The Report fails to mention that the bodies of the unnamed
mineworkers were stacked outside the mine’s mortuary in the boiling
sun because there was not space for them inside.57 Also, the Report
fails to record that ‘when the workers mourned the loss of their
comrades at a mass meeting, the apartheid government responded by
sending in riot police’.58
The passage fails to mention that when the Kinross accident
occurred in 1986, the use of the polyurethane substance that caused
the fire had already been prohibited abroad since 196859 — that is 18
years before the accident.
Documents that were readily available to the TRC reported that
Gencor management obstructed and sabotaged the subsequent
investigation of the tragedy.60 In a poorly prosecuted case, Gencor
was acquitted of culpable homicide. The only fine imposed was R100,
ironically or maybe not, against a (black) plate-layer accused of

55
TRC Report 2001 (n 7 above) 140.
56 TRC Report 1998 (n 7 above) 35-36.
57
http://www.cosatu.org.za/shop/ss0406-20.html.
58 As above.
59 As above.
60
‘Kinross Day: How 177 workers perished in mine accident’ NUM Newsletter
September 1992.
 Chapter 6 103

starting the fire.61 The going rate for the life of a black mine worker
at Gencor was less than one rand.62
Finally, the silence that remains, unthinkably so, is the silence of
the names of the human beings who died at Kinross on that
unspeakable day.

4 Reading / writing

It is thus absence that assures the presentation of truth, and presence

that entails its distortion.63
We now live in post-apartheid South Africa, which is all too often
understood as ‘apartheid is over and done with-’ South Africa. Instead
of stating positively why I believe we ‘all too often’ read ‘post-’ as
‘over and done with’, allow me explicitly to return to ‘reading’ and
more importantly perhaps to ‘writing’ of the disaster.64 Let us turn to
Dissemination one more time:
If reading and writing are one, as is easily thought these days, if reading
is writing, this oneness designated neither undifferentiated (con)fusion
nor identity at perfect rest; the is that couples reading with writing must
rip apart.65
In the excursion I asserted that the TRC’s work can be understood as
an exercise in remembering and forgetting in the context of its writing
of the disaster uniquely named apartheid. Of the disaster, Blanchot
writes that it obliterates our relation to the world as presence or as
absence; but ‘it does not thereby free us from this obsession with
which it burdens us: others’.66 It is precisely because the disaster
does not free us from our responsibility to others that the ‘is’ that
couples reading and writing must also rip apart in our engagement
with the TRC.
Allow me to be explicit that I do not believe that the TRC should
never have happened. My entire argument depends on the fact that
the TRC has happened, that there is a text that produces the open
spaces that are open to be read. However, what is needed in this
context is a denial of the meta-politics of closure of those for whom
forgetting makes economic sense. When I drive from Cape Town
International Airport to the University of Cape Town, where the side
of the road is lined with the conditions of subhuman life in which
human beings are forced to make a living in ‘post’-apartheid South

61 As above.
62
As above.
63 Derrida (n 3 above) xi.
64 M Blanchot The writing of the disaster (1995) trans A Smock 120.
65
Derrida (n 3 above) 69.
66 Blanchot (n 64 above) 120.
104 Jaco Barnard

Africa, I am always reminded that many remain for whom forgetting

does not make economic sense.
Some might say that economic reparation law was so self-evident
and the Commission’s proposals regarding its implementation so
forceful that attentiveness to produce a quasi-hallucination of the
economic violence of apartheid was not necessary. Yet nothing came
of the Commission’s forceful proposals in respect of reparation. I
cannot but relate the lack of economic reparation law directly to the
detail that has been left off the record — the particularity that hides
in the silences or what Mahomed, DP in the AZAPO decision, called
‘the crevices of obscurity in our history’.67 And this ‘lack’ has its roots
in the very founding moments of the new South Africa when, in Davos,
Switzerland in February 1992, big business won the day with its
insistence that foreign investment would not follow leftist/Marxist
economic policies.68 At the time the TRC (as a government
institution) investigated the role of big business in apartheid, the
same big business had already co-opted the new dispensation. This
fact may provide us with at least some of the explanation for how it
was dealt with at the archival moment. But it is also this fact that
must condition our reading of the open spaces in the text.
When we read the silences in the TRC Report it is not to plunder
the resource that is the text as archive. It is for me always done to
formulate a response to Mahomed DP’s judgment in AZAPO that: ‘It
might be necessary ... to close the book on that past.’69 Reading the
silences through ethical construction — what Derrida calls ‘critical
production’70 — is always done in order to respond to that assertion
by saying ‘it may not yet be’. It is thus done in the name of a
transformation and a justice of which we should always be able to say
‘there can be more’.
It is for this reason that reading silences does not equate to or
allow ‘adding any old thing’,71 simply because adding ‘any old thing’
does not aid us in our quest for transformation to establish the
(im)possible non-violative relation with the Other. The very reading
of these silences must proceed from a certain affirmation to the
Silence that first calls us to responsibility — the silence that can never
be fully read — the gaze of the dead.72

67
AZAPO & others v President of the Republic of South Africa & others 1996 4 SA
671 (CC), 1996 8 BCLR 1015 (CC) para 17.
68
See H Richards ‘Power and principle in South Africa’ in Dilemmas of social
democracies available at http://www.howardri.org/ dilemmas10.htm (accessed
23 September 2006).
69
AZAPO (n 67 above) para 2.
70 Derrida (n 12 above) 158.
71 Derrida (n 3 above) 70.
72
See J Derrida The gift of death (1995) trans D Wills 96 where Derrida explains
that the logic of the gift (of death) requires that there be no communication.
 Chapter 6 105

Harris re-orientates the archive towards these ideas in his plea for
an ethical understanding of the archive as a process: ‘[A] process of
remembering, forgetting and imagining, a process without beginning
and without ending.’73 He continues that this space should embrace
contestation and that we should all guard against impulses in and
around it to entice ‘amnesia, erasure, secreting and control’.74
Derrida describes the archival practice that finds itself in opposition
to closure politics as follows: ‘[P]erhaps ... the question of the
archive is not a question of the past ... It is a question of the future,
the question of the future itself, the question of a response, of a
promise and of a responsibility for tomorrow.’75
There is an ethical and political responsibility on all South Africans
‘to continue giving life to the TRC process, to be always finding the
TRC archive, safeguarding, using, promoting and taking it outside the
domains of elites’.76 This archive will and wants to remember in order
to address the atrocities of the past. It is also this archive/these
archives that hold/s and can command the possibility of a new law
which will address the big business of apartheid. Every victim of
apartheid has her own memories of the violence suffered at the hands
of the disaster. In understanding archiving as a process, all the victims
of apartheid will have to operationalise their memories and deny the
power behind the ‘official’ archive — that is to say deny the power
that is usurped in writing the official archive. The is that couples
reading and writing rips apart when those who remain concerned with
reconciliation read the archive and the silences of the archive,
acknowledge the openness of the archive and then proceed to write
the archive anew.
Harris believes that an understanding of archive as process,
‘inspires a radically activist practice’.77 He describes this archive as
‘a crucible of human experience’, ‘a space and place of ever-shifting
power plays’, it listens ‘intently for the voices of those who are
marginalised or excluded by prevailing relations of power’.78 I agree
with Jonker that what is needed is a creative politics which can draw
on the resources of activism:
A creative legal activism ... invests itself in the potential not to find but
to found responsibility. This potential exists in the role of memory and

73
Harris (n 19 above) 7.
74
As above.
75 Derrida (n 21 above) 36.
76
Harris (n 19 above) 7.
77 V Harris ‘Seeing (in) blindness: South Africa, archives and passion for justice’
available at http://www.caldeson.com/RIMOS/harris01.html (accessed 21
December 2005).
78 As above.
106 Jaco Barnard

the presence of the past in the very constitution of the law, at the time
of the law’s constitutional mo(nu)ment.79

5 (Dis)illusion?

Since we are remembering the AZAPO judgment, the text that

authorised the TRC and must itself thus contain a hidden law of
composition, I would say in conclusion that for me the concern with
silence lies at the heart of the Court’s decision in this matter. In
holding that amnesty is necessary ‘because the shroud of silence that
has enveloped the activity of perpetrators for too long would
otherwise go on doing so’,80 the entire decision rests upon the
attempt to produce sound, give voice to the silence and the secrecy
associated with the gross human rights violations of the apartheid
regime.
While this may in itself have been a laudable concern, we know
now that the TRC was always already going to produce its own silences
albeit within this attempt to elicit speaking out. This is the memorial
dimension of AZAPO — the dimension that calls for the work of
mourning. And it is the silences in the TRC’s Report that point to the
silence that can never be fully given voice or any other form of
representivity. But this is the silence before which any ‘we’ remains
responsible: ‘This silence calls out unconditionally; it keeps watch on
that which is not, on that which is not yet, and on the chance of still
remembering some faithful day.’81
Blanchot writes that the beginning of downfall happens when the
law starts commanding in its very failing and ‘thereby escapes safe
and sound yet again as law’.82 Considering the manner in which the
absence of reparation law in South Africa constitutes a vivid example
of how the law commands in its very failing and considering also
Blanchot’s assertion that the disaster is always inextricably bound up
with forgetfulness without memory, I would ask: Are we not in
allowing these things to be and to happen in this very present, are we
not in denying our responsibility for and before silence, are we not —
contrary to everything the ‘we’ has been telling us — are we not
(re)writing the disaster?

79 J Jonker ‘The silence of the dead: Ethical and juridical significances of the
exhumations at Prestwich Place, Cape Town, 2003 - 2005’ unpublished LLM thesis,
University of Cape Town 2005 35.
80 AZAPO (n 67 above) par 57.
81
Derrida (n 18 above).
82 Blanchot (n 64 above).
 7 Good victim, bad victim:
Apartheid’s beneficiaries, victims,
and the struggle for social justice*

Tshepo Madlingozi

I also think we were timid in our formulation of the terms of reference

of the TRC ... leaving out the crimes perpetrated in socio-economic
terms in our country was a grave mistake because the majority of people
in this country continue to bleed. Their wounds go totally unrecognised.
Their pain is totally unacknowledged.1
Janabari:
Serge, I have been trying to tell you that our wars were not merely to
replace a white face with a black one, but to change a system which
exploits us, to replace it with one which will give us a share in the
wealth of this country. What we need is another war of freedom, Serge.2

1 Background

Writing and commentating on South Africa’s Truth and Reconciliation

Commission (TRC) has become a booming academic mini-industry. So
much so that about five years ago, in 2001, Savage et al produced a
bibliography of writings on the TRC that ran to 113 pages.3 I take it
therefore that the story of the TRC is well known. Hence my task here
is not to evaluate the work of the TRC as a whole, but rather my focus
on the TRC is limited to the role that this institution played in South
Africa’s transition and the failure, which continues today, to critically
examine issues of social injustice that were produced by both
apartheid and colonialism. After all, the TRC was created not only to
legitimise the new state, but also to give birth to a new nation, a
nation based on substantive equality, dignity and freedom.4 In this
paper I would like to focus on the failure of the transition process to
put social justice on the agenda. Although it could be said that the
TRC process played an important role in bringing about stability and

* This title is borrowed from Mahmood Mamdani’s book Good Muslim, bad Muslim:
America, the Cold War,and the roots of terror (2004).
1
M Ramphele ‘Reconciliation is not enough’ Mail & Guardian 1 – 7 December 2006
4.
2 Z Mda We shall Sing for the Fatherland (1993) 22.
3
T Savage et al ‘Truth commissions and transitional justice: A select biography of
the South African Truth and Reconciliation Commission debate’ (2001) 16 Journal
of Law and Religion 69 as cited by D Foster et al The Theatre of violence:
Narratives of protagonists in the South African conflict (2005) 2.
4 See R Wilson The politics of truth and reconciliation in South Africa (2001) 1-27.

107
108 Tshepo Madlingozi

political reconciliation, in a word, political justice, the issue of social

justice is a fairly neglected dimension in discussions on the TRC and
the transition process in South Africa. In the South African context,
this failure has many implications especially given the fact that the
gravest legacy that apartheid bequeathed to South Africa was one of
systemic poverty, structural unemployment and inequality. In one of
the first comprehensive studies on black poverty in South Africa,
Francis Wilson and Mamphela Ramphela assert that, because of at
least three interlocking factors, poverty in South Africa is a special
case:5
First is the width of the gulf between the rich and the poor, the degree
of inequality. Second ... is the extent to which the poverty that exists is
a consequence of deliberate policy. The third aspect has to do with the
way in which the material poverty in South Africa is reinforced by racist
policies that are an assault on people’s humanity.
The unacceptable and socially unsustainable levels of inequality
between black South Africans and white South Africans is put into
further perspective by Cox in the following manner:6
In the 1992 HDI (Human Development Index) rankings, for example,
South Africa as whole places 86th among 173 countries, adjacent to
other middle income countries such as Sri Lanka, Botswana, and Peru.
Differentiating the South African figures by race, one finds that white
South Africa rises in rank to 18th place, with HDI place similar to New
Zealand, while black South Africa falls to 118th place, close to countries
such as Vietnam, Bolivia and Lesotho.
The ruling African National Congress (ANC) was swept into power by
popular forces that had huge expectations of major socio-economic
transformation and a dramatic improvement in the living conditions
of black people.7 Indeed, township struggles that were taking place in
the 1980s were about ‘transforming the racial status quo, the
prevailing set of stultifying and subjugating conditions of existence
for those deemed not white’.8 However, 12 years down the line not
much has changed for the majority of South Africans. In a literature
review on poverty and inequality in post-apartheid South Africa, Desai
reached the following conclusions:9
In the years between 1993 and 2002 the average rate of unemployment,
whether using the broader (more accurate) or narrower definition, has
risen to levels that are not only intolerable for those who want to work

5
F Wilson & M Ramphele Uprooting poverty: The South African challenge (1989) 4.
6 P Cox South Africa: Country assistance strategy: Building a knowledge
partnership (1999) 1.
7
S Terreblanche A history of inequality in South Africa 1652 - 2002 (2002) 27.
8 D Goldberg The death of race (2004) 9, cited in A Desai & R Pithouse ‘“But we
were thousands”: Dispossession, resistance, repossession and repression in
Mandela Park’ (2004) 39 Journal of Asian and African Studies 239 239-269, 246.
9 A Desai Uprooting or re-rooting poverty in post-apartheid South Africa? A
literature review (2005) 10 available at http://www.sarpn.org.za/documents/
d000123/P1365-Ashwin_Desai_May2005.pdf (accessed 20 November 2006).
 Chapter 7 109

and cannot find it, but also unsustainable for any society in the long
term. Moreover, breaking down the average figure, using the 1993 data
for example, the rate of unemployment varies from 2 per cent for the
older whites to 65 per cent for black women and men under the age of
25. People in the same country are living in different universes as far as
economic security is concerned ... At least 50 per cent of the population
has a monthly income whose level is too low to sustain a decent life.
The question of transitional justice is often posed as a set of binary
oppositions: Justice or reconciliation or rather reconciliation versus
justice. In this paper, I argue that in transitional societies, where
conflict was also characterised by violent dispossession and socio-
economic deprivation, the issue of social justice and thus
redistribution should be central to the discussion. Readers looking for
concrete proposals on how exactly this should be done in each case
will be disappointed. My purpose here is not to provide operational
answers, but to formulate an agenda for debate. And the central point
on the agenda is, in a phrase: Keep social justice central! This is the
central question that will animate my discussion. In order to do this,
I will first look at how the taxonomy of victimhood has been
interpreted within the human rights discourse to include notions such
as passiveness, being content with moral victory and putting the past
behind. Related to this, I discuss the tendency, also a result of
adopting the dominant conception of human rights discourse, of
drawing a sharp distinction between perpetrators and beneficiaries.
Lastly, to bring these two points together and to demonstrate how the
metaphor of bad victim has been manifested in South Africa, I discuss
the case of the Khulumani Support Group, a survivors’ organisation
that has, over the past 11 years, struggled for social justice for victims
and, as a consequence, has been to a large extent maligned and
marginalised by the government and others stakeholders.

2 Victims and the transition process

The TRC’s determination of whether someone qualified as a victim

was a highly technical and legalised process. The Human Rights
Violations Committee declared someone a ‘victim’ only if, in the
opinion of the Committee, he or she suffered gross violation of human
rights, in the form of killing, abduction, torture, or severe ill-
treatment. As a result, South Africa now has a group of just over
20 000 people who have been certified by the Commission as ‘victims’
of apartheid. Surely, in the period between 1960 and 1994, there
were more than 22 000 victims. In the first place, as Borer points out,
110 Tshepo Madlingozi

‘[T]he victimisation of one individual clearly has ripple effects on

families and communities, and several indirect victims can be
identified.’10
At the level of the family, the burden of having to bear the death
or disappearance of a daughter is traumatic enough. This burden is
transferred to extended families, especially where the latter have
suddenly to carry the burden of the upkeep of a dead, incapacitated
or disappeared person’s family where such a person was a
breadwinner. Borer refers to this group as ‘secondary victims’.11
These ‘secondary victims’ become ‘direct victims’ in instances were
they are themselves harassed by the members of security forces in
order to extract information from them.
The manipulation of pre-existing intercommunity rivalries by the
state led to the mislabelled ‘black-on-black violence’ in communities
such as those of the KATHORUS (Katlehong, Thokoza and Vosloorus)
on the East Rand, Gauteng, where thousands of people were killed
between 1990 and 1991 during clashes between hostel dwellers and
residents, as well as in violence in certain parts of KwaZulu-Natal. In
this case whole communities can be identified in the category of
victims. Lastly, for purposes of this paper, the majority of South
Africans can be added in this category as they suffered under
apartheid policies of forced removal, the migrant labour system,
racial classification, job reservation and so forth.
But, how far can we stretch the concept of victimhood? Can one
include white South Africans in this category — so-called bystanders
and beneficiaries? In this regard, Borer refers to arguments advanced
by Marie Smyth who has written on this issue in the context of
Northern Ireland.12 Based on empirical, moral, political and practical
grounds, for Smyth it is wrong to assert that ‘we are all victims’. Borer
summarises Smyth’s argument as follows:13
Empirically, not all victims are the same because not every individual
(nor all communities for that matter) suffer equally from human rights
abuses. Stating we are all victims serves to hide the unequal distribution
of human rights abuses across population groups and communities.
Morally, according to Smyth, it is wrong to lay claim to victimhood if one
is in any position of power or privilege. In relation to South African,
Smyth would apply this sentiment to White South Africans. She asserts
that the moral onus is on those who are in that position of privilege to
forego any claim to victimhood even if they may have suffered any, in

10
T Borer ‘A taxonomy of victims and perpetrators: Human rights and reconciliation
in South Africa’ (2005) 25 Human Rights Quarterly 1088 1113.
11 As above.
12
M Smyth ‘Remembering in Northern Ireland: Victims, perpetrators and hierarchies
of pain and responsibility’ in B Hamber (ed) Past imperfect: Dealing with the past
in Northern Ireland and societies in transition (1998) 31 as cited by Borer (n 10
above) 1110.
13 Borer (n 10 above) 1111.
 Chapter 7 111

order to reserve attention and resources for those who have suffered the
most. ‘Claiming victimhood’ Smyth says, ‘should not be institutionalised
as a way of escaping feelings of guilt, shame or responsibility.’ Finally, in
a post-conflict society, the distribution of resources requires targeting
those in greatest need. Universal definitions or claims of victimhood do
not facilitate this task, as they imply universal needs.
The above analysis is very important in the context of social justice
for a post-apartheid society. Indeed, while it is true that young
Afrikaner men who were raised in
an authoritarian masculinised militarised society in which they were
forced to go through a cadet system at school, were conscripted into the
army, were subjected daily to state propaganda about facing a total
onslaught from communist enemies14
and forced to commit atrocities in the name of apartheid and now
suffer from post-traumatic stress are also victims, for purposes of
achieving social justice it will be necessary to limit the category to
those who ‘suffered the most’.
To a large extent the TRC relied on people identifying themselves
as victims in order to make a determination. Potential victims refused
to come forward to testify before the Commission as they felt that
they were heroes who had fought for a just liberation and thus did not
associate themselves with the notion of victimhood. This refusal to
testify is significant because it meant that these people lost out on
reparations. However, before these groups of people are used as an
example of how all victims should view themselves; it is important to
point out that most of these individuals, who were members of
political organisations, expected — and most had this expectation met
— that they would be compensated in other ways, including by being
incorporated into the South African National Defence Force; assuming
positions of influence in either government, business or civil society;
or through the Special Pension Fund which compensates those people
who, ‘in the establishment of a democratic constitutional order,
made sacrifices or served the public interest; and the dependants of
those persons’. In contrast, those who came to the TRC, as Fullard and
Rousseau point out, ‘were not organised political activists in the
main, but were mostly ordinary and often very poor township
residents swept up in the conflicts of the mid-1980s and 1990s’.15
It is here where we see the split being made between victims who
continue to claim and struggle for reparations and social justice and
those who argue that the past must be put behind and that the
struggle was not about money. For an example of this position

14 Borer (n 10 above) 1113.

15 M Fullard & N Rousseau ‘An imperfect past: The Truth and Reconciliation
Commission in transition’ in J Daniel et al (eds) State of the nation: South Africa
2003 - 2004 (2003) 78 90.
112 Tshepo Madlingozi

consider the following statements by the then Minister of Justice and

Constitutional Development, Dullah Omar, on the issue:16
We will also bear in mind that our gallant sons and daughters did not
participate in the struggle and did not sacrifice their lives for monetary
compensation ... We must not reduce the victims of apartheid tyranny to
beggars pleading for a hand-out of mercy.
According to this logic, those who continue to campaign for
reparations and other forms of compensation for victims of apartheid
are turning them into beggars as they did not participate in the
struggle to be compensated. This argument misses the point that the
majority of those who came to the TRC and in respect of whom the
TRC duly recommended compensation were ‘very poor township
residents’. These are the victims who need compensation and
reparations because they
need support for their counselling services; they need access to
particular medical care; they need educational assistance for their
dependants to escape the poverty trap; they need prosthetic limbs to be
provided for those permanently physically disabled; they need discussion
forums to resolve how the issue of the disappeared is being addressed;
they need compensation for the loss of homes and property.17
Further, this sort of argument conveniently ignores the fact that many
political activists, especially the ones aligned to the ruling party,
continue to receive ‘monetary compensation’ in the form of
government appointments as well as through the state-supervised
Black Economic Empowerment (BEE) Programme.18
The splitting of victims into ‘good victims’ and ‘bad victims’ is not
unique to South Africa. It pervades all post-conflict societies
especially where the oppressed did not win the struggle through
military force, but where an elite compromise was reached which
ensures that previous material and social privileges are maintained.
Bad victims are a thorn in the side of the new government because,
by continuing to campaign for social justice, they expose the poverty
of this elite compromise, which involves maintaining the ill-gotten
gains provided that a section of the new elite is placed in positions of
economic power and privilege. Predictably the new government
reacts, in terms akin to Omar’s statements above, to say that victims

16
Joint sitting of the National Assembly and the National Council of Provinces
(NCOP), 1999: columns 64-65 as cited by Fullard & Rousseau (n 15 above) 87.
17 M Jobson ‘The TRC ten years on’ paper presented at a conference organised by
the Institute for Justice and Reconciliation entitled TRC: Ten years on 20 - 21
April 2006, Cape Town 2.
18 Consider the following statement by the spokesperson for the ANC, Smuts
Ngonyama, who, after being linked to a multimillion rand deal involving the
parastatal Telkom, was reported to have proclaimed that ‘I did not struggle to be
poor.’ See J Qwelane ‘Wot a lotto they’ve got’ 18 September 2006 News24.com
available at http://www.news24.com/News24/Columnists/Jon_Qwelane/0,,2-
1630-1633_2000272,00.html (accessed 01 November 2006).
 Chapter 7 113

must simply accept that moral victory was enough and should not push
for any distributive justice. Meister puts this in unsurpassable fashion,
arguing that this is precisely what happens when dominant models of
transitional justice work, based as they are on the human rights
discourse, where the public is taught that
[t]he past suffering of victims could be honoured as a claim to moral
victory precisely insofar as they were willing to accept moral victory as
victory enough and to forgo the demands of revolutionary justice ...19
This view is powerfully presented in the following grand statement by
the then Deputy-President, Thabo Mbeki:20
Surely all of us must agree that reparations will be offered to those who
fought for freedom by ensuring that monuments are built to pay tribute
to these to whom we owe our liberty ... We must however also make the
point that no genuine fighter for the liberation of our people ever
engaged in struggle for personal gain ... We must not insult them and
demean the heroic contribution they made to our emancipation by
turning them into mercenaries whose sacrifices we can compensate with
money.
Again we see a disdain being shown to those who struggle for the right
of victims to be compensated. They are said to be insulting and
demeaning liberation fighters by turning them into mercenaries.
Implicit in this acerbic lecture is the view that says that those who do
not demand reparations and social justice are ‘good victims’ and
those who do are ‘bad victims’. Good victims are the quintessential
victims in the eyes of the dominant discourse of human rights. ‘The
metaphor of the victim’, argues Mutua, ‘is the giant engine that drives
the human rights movement.’21 With even more insight Mutua argues:
[T]he victim must also be constructed as sympathetic and innocent
[otherwise] it is virtually impossible to evoke sympathy for a victim who
appears villainous, roguish, or unreceptive to a liberal reconstructionist
project.22
In the context of South Africa, Meister concludes as follows:
Distributive justice is, thus, largely off the agenda of societies with new
human rights cultures, except to the extent that redistribution can be
divorced from retribution and recast as ‘reparation’ — which in South
Africa, for example, consisted less in remedies for past suffering than in
symbolic acknowledgment.23

19
R Meister ‘Human rights and the politics of victimhood’ (2002) 16 Ethics and
International Affairs 91 95
20
Statement on the Report of the TRC Joint sitting of the Houses of Parliament
(1999) 4 cited by Borer (n 10 above) 1094.
21 M Mutua Human rights: A political and cultural critique (2002) 27.
22
Mutua (n 21 above) 29.
23 Meister (n 19 above) 95.
114 Tshepo Madlingozi

3 Beneficiaries and the scapegoating of direct

perpetrators

Given the limited mandate that the TRC was given, perpetrators were
found to be those individuals who committed an act, omission or
offence, which amounted to a gross violation of human rights, that is
killing, abduction, torture or severe ill-treatment. In the end, only
around 10 000 people were found to be perpetrators. The quasi-
judicial process of amnesty decisions left a number of grey areas as
Foster et al point out in their very valuable study. Just to mention a
few of these grey areas: One of the first grey areas ‘pertains to those
cogs in the wider machine who may not have committed atrocities,
but nevertheless supplied information or greased the administrative
wheels which permitted violence’.24 These would include members of
the National Intelligence Services (NIS) who committed no direct
violations of human rights, but nevertheless supplied information that
led to arrests, detentions and torture. A second grey area refers to
the so-called ‘horizontal’ or ‘lateral’ violence which occurred among
oppressed people; who, due to multiple ‘social causes’, are engulfed
in patterns of violence. In the South African context this refers to
violations that happened in the context of ‘black-on-black violence’
such as in acts of ‘necklacing’, ‘taxi violence’ and so forth. Here, as
Foster et al point out, ‘perpetrators are simultaneously victims’.25
Because of the quasi-judicial nature of the amnesty decisions, the
TRC did not adequately address the situation of these ‘perpetrators’.
Another important grey area that Foster et al allude to ‘is the
vexed question of collective or individual accountability and
explanation’.26 Foster et al expose the confusing positions that the
TRC adopted on this matter:27
On the one hand, it only recognised perpetrator applicants if there was a
declared political motive ... [i]n other words, there was a vested
interest for perpetrators to declare affiliation to, or belief in, a
collective, a political organisation. Clive Derby-Lewis and Januz Walus,
the already-convicted killers of ANC stalwart Chris Hani, were refused
amnesty on the grounds that they were not acting within the authority
of the Conservative Party (CP). Furthermore, political motive was
interpreted quite narrowly to refer to major political parties so that
other forms of collective violations, such as crowd murders or murder
due to witchcraft beliefs, remained strictly outside of political party. On
the other hand, collective amnesty applications, such as that submitted
by senior leadership of the ANC, were not considered. Only individuals —
albeit acting in the ‘execution of an order of, or on behalf of, or with

24 Foster et al (n 3 above) 4.
25 As above.
26
Foster et al (n 3 above) 5.
27 As above.
 Chapter 7 115

the approval of a political organisation as a “member, agent or

supporter”’ — could be found to be perpetrators, be named per-
petrators and be granted amnesty ... The TRC specifically excluded as a
criterion for evaluating perpetrators, acts for personal gain or actions
out of malice, ill will or spite directed against the victims. On the
surface that seems a clear enough distinction, but who is to say quite so
clearly how acting out of will can be disentangled tidily from a fierce
struggle against hated and feared enemies.
From the reflections above, it is clear that the designation of
‘perpetrator’ by the TRC raises some controversy and that the list of
10 000 official perpetrators is not practically accurate. Further
complicating the issue is the fact that at the end of the TRC process,
all major political parties, the ANC, the Inkatha Freedom Party (IFP)
and the National Party (NP), rejected being labelled perpetrators and
mounted a number of challenges against the TRC through courts and
other political avenues.
I began the preceding section by pointing out that within the
category of victims a whole range of people qualify, and that the
category of victims can thus be stretched quite a bit and be signified
by this shorthand: individual-family-community-nation. Similarly,
Govier and Verwoerd argue that from an ethical perspective ‘we need
a deeper theory of militant agency (“perpetration”) or participation
in violent political conflict as a counterpart to this broader
understanding of victims’.28
Govier and Verwoerd‘s main point is that the designations of
‘victim’ and ‘perpetrator’ lead to a polarised framework that is too
simplistic and counter-productive. They divide perpetrators into
three groups: ‘Direct or primary participants’ which will include ‘foot-
soldiers’ and those who urge and organise the actions of the ‘foot-
soldiers’. Behind ‘primary participants’ are ‘secondary participants’
who ‘are persons close to action but neither immediate agents nor
instigators. In legal language, these persons would be said to “aid and
abet.”’29 Lastly, there are ‘tertiary participants’,
who take sides in the conflict and support it without being closely
involved in actions on the ground. Such people contribute through their
participation in a broader community, supporting the political
struggle.30
I find Govier and Verwoerd’s typology useful because it accounts for
a number of people who, although not pulling the trigger or raping a
victim, also bear responsibility for gross violations of human rights.
Focusing only on those who commit direct acts of violations of human
rights unfairly stigmatises them and amounts to scapegoating. As

28 T Govier & W Verwoerd ‘How not to polarize “victims” and “perpetrators”’ (2004)
16 Peace Review 371 372.
29
Govier & Verwoerd (n 28 above) 373.
30 As above.
116 Tshepo Madlingozi

Govier and Verwoerd insist: ‘A primary level of participation can only

exist because there are secondary and tertiary levels.’31 Apportioning
the blame on a whole range of actors allows us to get a fuller picture
of those responsible so that they can be included in transitional
processes. And so, what about beneficiaries? Firstly, beneficiaries of
an unjust system should not be confused with ‘tertiary participants’
because, as Govier and Verwoerd put it, ‘the beneficiaries of policies
and actions are often alive only after the damaging actions have
occurred and played no role in causing them.’32
Since the TRC was an institution that was meant to help South
Africans achieve (re)conciliation and, most importantly, to legitimise
the new state, especially in the eyes of so-called minority groups, a
sharp distinction was drawn between perpetrators and beneficiaries.
It was deemed necessary that those who pulled the trigger and raped
be pointed out and publicly shamed so that beneficiaries would be
able to express shock and disgust, and proclaim that they did not
know how evil the apartheid security forces were. At the same time,
victims would be enjoined to see that the problem of apartheid
resided with a few bad apples;33 and in that way focus only on these
as objects of their scorn. Furthermore, victims were to understand
that as part of building a united rainbow nation and creating a culture
of human rights based on the ‘rule of law’, it was necessary to focus
on the future and not ask nagging questions about benefits and
advantages accrued by beneficiaries. In so doing, issues of distributive
justice have been jettisoned in favour of feel-good myths. Meister is
clear on this:34
By accepting the distinction between individual perpetrators and
collective beneficiaries of injustice, and by treating that distinction as
required by the ‘rule of law’, the formerly revolutionary victims would
become ‘reconciled’ to the continuing benefits of past injustice that
fellow citizens still enjoy, and would thus appear ‘undamaged’ in the
sense that they now put their victimhood firmly in the past.
The distinction between individual perpetrators and beneficiaries is
said to be necessary in order to facilitate the project of nation
building as well as to achieve national reconciliation and unity.
Mamdani argues that this narrow, individualistic and legalistic view
obstructed the wider project of ensuring social justice for the
majority of Africans in South Africa. Mamdani thus argues that in

31
As above.
32 As above.
33
Former President FW de Klerk, with a straight face, blamed atrocities committed
during apartheid on a few rotten apples, claiming that those were ‘the criminal
actions of a handful of operatives of the security forces of which the
(government) was not aware and which it never would have condoned’. Cited in C
Villa-Vicencio ‘Don’t blame me, I just live here. Political accountability and
reconciliation’ (1997) paper presented at the Scandinavian Reconciliation
Symposium, Copenhagen, Denmark, 2 as cited by Foster (n 3 above) 43.
34 Meister (n 19 above) 94.
 Chapter 7 117

order to ensure true reconciliation, the focus has to move from

individual perpetrators to beneficiaries. He outlines the implication
of just focusing on individual perpetrators as follows:35
Where the focus is on perpetrators, victims are necessarily defined as
the minority of political activists; for the victimhood of the majority to
be recognised, the focus has to shift from perpetrators to beneficiaries.
The difference is this: whereas the focus on perpetrators fuels the
demand for justice as criminal justice, that on beneficiaries would shift
[the] focus to the notion of justice as social justice.
In the South African context, beneficiaries were able to dissociate
themselves from perpetrators by claiming they did not know how the
system that advantaged them was sustained or that they never
supported apartheid.36 Another device that was and still is used by
beneficiaries is to reject perpetrators. Foster et al catalogue
different representations of perpetrators in the mainstream media
which function to create a safe distance between beneficiaries and
direct perpetrators. Examples of these include the following:37
• As religious: Barend Strydom is described by Die Burger newspaper as
a Calvinist and a Christian, fighting the Christian struggle and wanting
to reinstate the ‘Christelike Protestantse Boerevolksrepubliek’.
• As ‘mad’: Wouter Bassson is seen as being driven by ‘psychotic
megalomania’ and the people around him as having ‘delusions of
grandeur’.
• As criminals: The right-wing extremist paramilitary group, the
Afrikaner Weerstandsbeweging (AWB), is described as a ‘murderous
gang’ and bastards.
• As obedient servants or professionals: Eugene de Kock was reported
to have maintained that he was ‘a loyal and trustworthy servant of
the previous state’.
• As cruel, savage, brutal: The askari Joe Mamasela is described as
‘being brutal, the security police’s own lethal weapon’.
• Use of fictional analogies: Justice Sachs invokes the image of
Hannibal Lecter, a villain in the Silence of the Lambs trilogy of
movies, when describing the man nicknamed the ‘prime evil’, Eugene
de Kock.
Via the work of Hook,38 Foster et al show that the subtexts underlying
these representations are to urge beneficiaries to ‘objectify and
otherise’ perpetrators.39 This objectification is achieved through
sensationalisation and sentimentality that put a distance between

35
M Mamdani ‘When does reconciliation turn into a denial of justice?’ (1998) Sam
Nolutshungu Memorial Lectures Series 14.
36 There is a standing joke in South Africa that it is now impossible to find a white
person who supported apartheid.
37 See Foster et al (n 3 above) 27-54.
38 D Hook ‘Reading Geldenhuys. Constructing and deconstructing the Norwood killer’
(2003) 33 South African Journal of Psychology 1.
39 Hook (n 38 above) 6 as cited by Foster et al (n 3 above) 52.
118 Tshepo Madlingozi

readers and the perpetrator so that the readers do not see themselves
represented in the perpetrator and thus do not accept any moral
responsibility.40 The TRC must also take some of the blame here, for
as Mamdani asks:
Isn’t one objective of the TRC’s televised hearings in fact to invite
beneficiaries to be so outraged at the evil that was perpetuated in their
name as to denounce perpetrators, and thereby isolate them?’41
Simultaneous to these processes that seek to isolate perpetrators,
beneficiaries are able to assert that, because they now know the
truth, they are able to identify themselves with victims or their pain.
At the same time victims are expected to accept the innocence of
passive beneficiaries who are not like those ‘mad, cruel and blood-
thirst[y]’ perpetrators. In the midst of this coming together and
marching towards the horizon, the issue of benefits and advantages is
not raised. The victim must be happy that she has scored a moral
victory as bestowed upon her by beneficiaries. It is worth quoting
Meister here:42
The objective of Human Rights Discourse will be achieved when those
who happened to come out ahead in the old order acknowledge as evil
the practices that produced their continuing advantage. This acknow-
ledgment, however, leaves much of that advantage in place in so far as
the accepted absence of redistributive politics demonstrates, both
morally and psychologically, the capacity of former victims to regard the
evil as past and to get on with their lives.
When victims do, however, raise the issue of redistribution of
resources, some beneficiaries may respond by minimising the extent
to which apartheid really benefited them, if not completely to deny
this. The following response by an interviewee in a study that
investigated white perceptions of urban change is commonplace:43
[It was] not just whites that benefited ... there’ve been a lot of Indians
that have benefited as well, I mean there’ve been a lot of black people
who have benefited ... all around I think there were a lot of people who
benefited and not just the whites. I think the average middle-class
person on the street has worked pretty hard for what they’ve got ... yes
maybe because they were the only ones who were getting the jobs,
maybe in that way it basically helped them, but I don’t think, I mean, I
think the average middle-class person ... has worked hard for his money;
he’s the one who pays the taxes ... and keeps paying the tax, and the
middle man is always the man who feels it most.
Ballard shows how this position seeks to de-link black poverty and
white privilege by denying that there is a structural consequence to

40
Foster (n 3 above) 52.
41 Mamdani (n 35 above) 16.
42 Meister (n 19 above) 98.
43
R Ballard ‘The ant and the grasshopper. Rationalising exclusion and inequality in
the post-apartheid city’ (2004) 51 Theoria 64 78.
 Chapter 7 119

apartheid. Thus in this position ‘the poverty of the poor and the
privilege of the rich are not connected to apartheid but are attributed
to endogenous factors in each group.’44 In this regard, Mamdani
argues that,
[t]o lay the groundwork for social justice, [the TRC] would have to
impart a different kind of education to beneficiaries. It would have had
to educate them of the link between wealth and power, by painting
apartheid as a regime of violence that dispossessed the majority of
means of livelihood, just as surely as it laid the basis for enriching a
privileged minority.45
From his study Ballard concludes that unfortunately ‘the first decade
of democracy has evidently not resulted in this kind of reconstruction
of understandings of inequality, or even a commitment to reconstruct
understandings of inequality’.46 This lack of reconstructed under-
standing or a desire to undertake such a reconstructed understanding
can be blamed on the TRC, which did not find that apartheid was a
crime in itself but only concentrated on the actions of a few
individuals.
To summarise, the TRC, influenced as it was by the dominant
discourse of human rights, drew a sharp distinction between direct
perpetrators and beneficiaries. This distinction served to reduce the
problem of apartheid to a case of a few overzealous and trigger-happy
state security officials. More significantly, an implicit objective of this
distinction was to jettison issues of benefits and advantages from the
table and to de-link the connection between black poverty and white
privilege. In order for us to return to the politics of redistribution that
was in vogue in the 1980s, we need to reject the dominant human
rights discourse and also challenge the government’s embrace of neo-
liberalism. Post-apartheid social movements present an ideal vehicle
for this endeavour.

4 Khulumani Support Group: Bad victims?

Before I conclude I will like to look at the case of a survivors’

membership-based, non-governmental organisation which is at the
forefront of demanding social justice for victims of apartheid and
which has struggled against attempts by the government and others
to marginalise and silence it. The Khulumani Support Group
(Khulumani) is the only national membership organisation of victims
of apartheid human rights violations. This organisation was formed in

44
As above.
45 M Mamdani ‘The truth according to the TRC’ in I Amadume & A An-na’im (eds)
The politics of memory: Truth, healing and social justice (2000) 176 183 as cited
by Ballard (n 43 above) 85.
46 Ballard (n 43 above) 85.
120 Tshepo Madlingozi

1995, in response to the setting up of the TRC. Membership of this

organisation comprises people who are, directly and indirectly,
victims and survivors of apartheid human rights violations. According
to Khulumani’s constitution, the aim of this organisation is ‘ ... to
contribute to the empowerment of survivors and relatives of victims
and survivors of Human Rights abuses during the Apartheid era in SA’.
Some of the programmes that Khulumani is currently undertaking
include the following:47
• Contact, support and work with survivors of death row
• Focus on Khulumani survivors of gender-based violence at the hands
of both state agents and fellow comrades
• Victim and survivor-led community memorials
• Keeping the issue of disappearances and their resolution on the
national agenda and taking steps to resolve cases with partners in
government
• Implementing community reparations through the securing of
community investment grants for local, sustainable livelihood
activities
• Addressing the direct needs of victims for prostheses, healing from
torture, and adult basic literacy training, among others
• Advancing reconciliation within violated communities
• Youth participation in social reconciliation
Membership to Khulumani is by way of filling out a needs assessment
form, outlining the details of violation(s) of human rights that the
individual has suffered and what his or her needs are. These are then
captured onto a database and used for lobbying and advocacy. The
fact that membership of Khulumani — an IsiZulu word that means
‘speak out’ — is by way of self-identification as a ‘victim’ or
‘survivor’, as opposed to being ‘certified’ by a state agency,
contributes to affirming the agency of these victims. In the words of
Dr Marjorie Jobson, Director of Khulumani, such self-identification
‘personalises the struggle by creating ways in which those who
contributed may identify themselves and it affords them
opportunities to name the harm that was done to them as a first step
towards their healing’.48 Of the 54 000 of Khulumani’s membership
base the majority ‘are currently older than 50 years, not married,
without a matric qualification, unemployed and responsible for four
or more dependants’.49 Around 90 per cent of Khulumani’s members
did not receive reparations.50

47
Visit Khulumani’s website at www.khulumani.net.
48 Jobson (n 17 above) 1.
49 Khulumani Support Group ‘Membership profile of Khulumani Support Group’
Information Pack (2006) (Khulumani membership profile).
50 As above.
 Chapter 7 121

Khulumani members do not hold a very positive view of the TRC.

In empirical studies that were conducted to determine the
perspectives of Khulumani members regarding the TRC, it was found
that although the TRC may have helped at a national political level to
create stability, from the perspective of many Khulumani members
the TRC has not helped victims cope with their tragedies in a
convincing manner, or help[ed] them deal with the ongoing personal
and social difficulties created by their victimisation.51
For over a decade Khulumani has been at the forefront of the
campaign for reparations for victims. For Khulumani, reparations do
not necessarily imply ‘monetary compensation’ as government
officials seem to think, but would ‘include a multiplicity of possible
actions that could be taken, ranging from financial payments through
to the provision of medical and rehabilitative care, and even to the
payment of punitive damages’.52 This is significant because 90 per
cent of Khulumani members are victims of violent abuses such as
killings, torture and indiscriminate shooting.53 In 2005, Khulumani
launched its ‘Redress Campaign’, explaining that ‘redress, in the view
of [the] Khulumani Support Group, incorporates reconstruction,
rehabilitation and restitution beyond reparations’.54
In a letter from members of the Vaal region of Khulumani,
addressed to the State President, they declared the following:55
In recent months, the need to deal with our past has become a growing
need. These issues that relate to our past need to be addressed more
carefully and responsibly than previously. For ourselves and for many
across South Africa, our circumstances remain almost unchanged. This is
the difficulty we wish to address. We are asking you to provide support
for our work to continue the work of the TRC. We need support for a
service in our area where we can access support group meetings and
counselling. Our members have both serious psychological and physical
conditions that have resulted from what was done to them in the years
of apartheid. They suffer from depression and anxiety and they still find
it difficult to share their painful memories with others. They find that
there are few people that they feel they can trust. Many of our members
complain of inadequate access to medicines and to ongoing medical
assistance.
We can see from the demands above that survivors do not simply want
‘monetary compensation’. In 2003 Khulumani commissioned a group
of experts consisting of a psychologist, two medical practitioners; an

51
B Hamber et al ‘Speaking out: The role of Khulumani Victim Support Group in
dealing with the past in South Africa’ available at http://
www.brandonhamber.com/publications/pap_khulumani.doc (accessed 13 Novem-
ber 2006).
52 Jobson (n 17 above) 2.
53 Khulumani membership profile (n 49 above).
54
Khulumani Support Group ‘Understanding “Redress”’ Press Release 2005 1.
55 Cited by Jobson (n 17 above) 2-3.
122 Tshepo Madlingozi

actuary, an economist as well as two law professors to develop a

victim-driven reparation policy regarding ‘the comprehensive and
satisfactory resolution of the outstanding and unresolved matters
arising from the work and purpose of the Truth and Reconciliation
Commission’.56 This policy proposal was a reaction to the govern-
ment’s own reparation policy which Khulumani alleged was drafted
without allowing civil society enough time to make inputs. The
Khulumani reparation policy proposals covered a range of issues
including57
• specific proposals and costing on a comprehensive plan to provide for
the lifelong medical and psychosocial needs of victims;
• an overview of policies and programmes that re-empower victims
after situations of gross human rights violations and that end impunity
for the perpetrators of these abuses; and
• a comprehensive approach towards community reparations.
The Khulumani reparation proposals were submitted to the
government in 2003, but the government has never given any
feedback, let alone engaged with Khulumani on these proposals. This
reflects the general attitude that the government has towards the
only national victims group. Just prior to this, in August 2002,
Khulumani Western Cape had to go to court to force the government
to disclose its reparation policy.58 The disdain that the government
and its supporters have for Khulumani was clearly exemplified by an
incident that occurred during a June 2000 visit by President Mbeki to
Soweto to commemorate Youth Day. Khulumani members who were
holding placards calling for the implementation of the TRC’s
reparations proposals ‘were manhandled and their placards destroyed
by ANC supporters’.59 But perhaps the example that best illustrates
the state’s view of survivors who rise to claim their rights is its
conduct around the international lawsuit that Khulumani has
instituted in New York claiming reparations from certain multi-
national corporations (MNCs).
On 12 November 2002, Khulumani et al v Barclays et al was filed
in New York Eastern District Court against a number of MNCs for aiding
and abetting apartheid’s crimes against humanity by allegedly
supplying ammunitions, technology, oil and loans.60 This case is based
on the 1789 Alien Tort Claims Act (ATCA) which grants universal

56
Khulumani Support Group Reparation Policy Proposals (2003) available at http://
www.khulumani.net/component/option,com_docman/task,cat_view/gid,97/
Itemid,137/ (accessed 20 November 2006).
57
As above.
58 See the affidavit submitted on behalf of Khulumani Support Group, Western Cape
Region, on this matter at http://www.khulumani.net/documents/Khulumani_
WCape_HighCourt.doc (accessed 24 November 2006).
59 Fullard & Rousseau (n 15 above) 88.
60
See the full complaint at http://www.cmht.com/pdfs/apartheid-cmpl.PDF
(accessed 18 January 2007).
 Chapter 7 123

jurisdiction over any ‘civil action by an alien for a tort only,

committed in violation of law of nations or a treaty of the United
States’. In a press statement, Khulumani averred that the
international lawsuit
is the only route left open to us to ensure that the truth is known about
the extent of corporate complicity in apartheid abuses and that justice
is delivered to those who suffered. The victims cannot be left to pay for
their own suffering. Multinational corporations must be put on notice
that complicity in crimes against humanity does not pay.61
Initially the government’s position on the international lawsuit was
one of indifference, neither supporting nor rejecting it.62 However,
the government position has since changed to one of extreme hostility
to the international lawsuit. The Finance Minister called it a ‘kind of
adventurism’.63 Then in July 2003, the then Minister of Justice and
Constitutional Development, Penuell Maduna, ‘voluntarily’ submitted
an affidavit to the Court as an amicus curiae outlining the reasons why
the Court should dismiss this case. Among other things, he claimed
that matters raised by this case were not legal matters, but political
matters, which the TRC had dealt with; that using foreign courts to
address matters central to the future of South Africa infringed on the
country’s sovereignty and, more significantly, he appealed to the
Court to throw out the case because it would scare away much needed
foreign direct investment.
As Nagy points out, the government’s opposition is unfair:
The apartheid litigation was launched in 2002. This was after four years
of frustration with the minimal acknowledgement of responsibility
within the South African and multinational business community,
frustration with the government’s rejection of the TRC’s recommended
wealth tax or corporate levy, and failed lobbying of foreign banks to
cancel apartheid debt as an act of reparation.64
The government’s opposition to the lawsuit has to be seen within the
context of the ANC pro-big business policies that are a result of its
embrace of the neo-liberal economic ideology. To be sure, in his
affidavit, paragraph 8.1, Maduna declared:
Government’s policies of reconstruction and development have largely
depended on forging constructive business partnerships. Its 1996
Growth, Employment and Redistribution (‘Gear’) strategy further

61
Khulumani Support Group ‘Press Release on the International Lawsuit’ 12
November 2002 as cited by J Sarkin ‘The coming of age of claims for reparations
for human rights abuses committed in the South’ (2004) 1 SUR - International
Journal of Human Rights 66 99.
62 Sarkin (note 61 above) 100. This is in contrast to former President de Klerk who
quickly stated that he would advise the companies to fight the lawsuit. See Sarkin
100.
63 Sarkin (n 61 above) 101.
64
R Nagy ‘Postapartheid justice: Can cosmopolitanism and national-building be
reconciled?’ (2006) 40 Law & Society Review 623 638.
124 Tshepo Madlingozi

acknowledged the importance of the private sector [in] that faster

economic growth offers the only way out of poverty, inequality and
unemployment, that such growth is driven by both foreign and local
private sector investment, and that government’s principal role[s] is to
create an enabling environment for such investment. This market-
friendly strategy regards business as the engine of economic growth.
The state’s decision in 1996 to adopt GEAR has meant that the legacy
of inequality and structural poverty inherited from apartheid has not
only remained largely unchanged, but has been exacerbated. Under
GEAR, unemployment, wage disparities, landlessness and poverty
have worsened. At the same time, the privatisation and
commodification of municipal services has meant that basic services
such as health care and the provision of water and electricity have
become inaccessible to the majority of South Africans.65 The
combination of the discourse of human rights with neo-liberalism has
meant that redistribution has fallen off the agenda of the ANC.66
Indeed, as Mutua argues, the adoption of the human rights discourse
in post-apartheid South Africa and the forward-looking ‘rule of law’
has ‘... turned out to be the instrument for the preservation of the
privileges of ill-gotten gains of the white minority ... the state put a
stamp of approval for the unjust and unfair society.’67
Therefore the institution of this international lawsuit, Nagy
argues, ‘functioned to pressure the government to fulfill the
constitutional promise of reparation and to drop what is perceived to
be [an] equivocal and at times acrimonious stance toward[s] victims.
The sense of marginalisation within the “new” South Africa is an
important factor driving victims’ outside quest for recognition and
redress.’68

5 Conclusion

In order for the story of the TRC and the transitional process in South
Africa to be told fully; and in order for this story to have some
relevance beyond the passing curiosity of international observers and
analysts, it needs to be situated within the political economy that
underlined South Africa’s transition from a racist repressive regime to
a liberal democratic regime and the concessions that were made
during that period.

65 For comprehensive analyses of the effects of GEAR, see P Bond Elite transition:
From apartheid to neoliberalism in South Africa (2000); Terreblanche (n 7 above)
and H Marais South Africa limits to change: The political economy of transition
(2001).
66
Compare this with the 1955 Freedom Charter which committed the ANC to some
sort of socialist policies.
67 M Mutua ‘Hope and despair for a new South Africa: The limits of rights discourse’
(1997) 10 Harvard Human Rights Journal 63 112.
68 Nagy (n 64 above) 639.
 Chapter 7 125

Khulumani has described its story as one which ‘over the past
eleven years ... has been the story of the building of a social
movement for justice and human rights with a sharply defined agenda
of seeking to secure social justice for victims and survivors of the
struggle.’69
In asserting this. Khulumani is declaring its membership to a
community of social movements in South Africa that is striving for
social justice and genuine participatory democracy. These post-
apartheid social movements have been born out of the need to
confront the state on its neo-liberal policies, which have not only led
to social depredations in poor communities, thus exacerbating the
legacy of apartheid, but also to marginalisation from the structures of
government.70 As McKinley and Veriava have argued, the ANC's turn
towards neo-liberalism, represented officially by the adoption of
GEAR, has ’only served to reinforce the class inequalities and social
unevenness that were a natural inheritance of South Africa’s
apartheid socio-economic relations. GEAR’s practical results have had
devastating effects on the lives of those South Africans most in need
of socio-economic redress.’71
There cannot be any talk of social justice without shining the
spotlight on beneficiaries. To do so would not be to engage in a witch-
hunt, but to move towards sustainable reconciliation. As Mamdani has
made clear, the distinction between perpetrator and beneficiary, and
between victims as the minority and victims as the majority permits
the distinction between political reconciliation, which is narrow and
limited to political elites, and social reconciliation, which has a wider
embrace as it reaches out to those who benefited or were victimised
as part of the logic of the system of apartheid. He thus argues that
shifting focus away from perpetrators and victims, who were activists,
is key to making social reconciliation durable. He submits thus:72
As a form of power, apartheid undergirded a particular system of
privilege. A focus on power that obscures the relationship to privilege
leads to accenting the relationship between perpetrator and victim as
the minority. But a focus that links power to privilege links perpetrator

69 M Jobson ‘Grantmaker-grantee relationships in a transforming South Africa: Some

thoughts on Khulumani’s relationship with the Foundation for Human Rights’
paper prepared for the Foundation of Human Rights 10th anniversary
commemorative publication (2006). Also see M Jobson ‘What is a social
movement? Is Khulumani a social movement?’ Khulumani Newsletter December
2006.
70 For more in-depth analyses and case studies on these post-apartheid social
movements, see R Ballard et al (eds) Voices of protest: Social movements in post-
apartheid South Africa (2006); N Gibson (ed) Challenging hegemony: Social
movements and the quest for a new humanism in South Africa (2006) and T
Madlingozi ‘Post-apartheid social movements and the quest for the elusive “new”
South Africa’ Journal of Law and Society (forthcoming).
71 D McKinley & A Veriava Arresting dissent: State repression and post-apartheid
social movements (2005) 9.
72 As above.
126 Tshepo Madlingozi

to beneficiary, racialised power to racialised privilege, and puts at

centre-stage the relationship between beneficiary and victim as the
majority. To recognise the difference is, I think, key to thinking through
how to make reconciliation durable.
Building monuments is important, memorialisation is important,
renaming the streets and public buildings is important; however, this
should not be done with the view of deflecting attention away from
the issue of social justice. We must join Mamdani in declaring that ‘no
genuine reconciliation is possible without social justice’. For this to
happen, genuine redistribution politics must be put on the agenda,
not the politics of BEE, which is really meant to build a middle class
loyal to the ANC.73 The last word goes to Khulumani which has
declared as follows:74
The transformation that we seek is one characterised by social and
economic justice — one that overcomes the growing chasm between
those who are comfortable and those who remain materially
impoverished; a transformation that addresses the socioeconomic crimes
of the past.

73
For purposes of this paper, the following comments by W Gumede are thus apt:
‘Sadly, in country where the majority of blacks live their entire lives in abject
poverty and drudgery, many of the nouveau noir riche shamelessly flaunt their
wealth ... Having stepped across the threshold into newfound wealth and social
cachet, many former black politicians seem to forget the struggling masses with
ease. When the TRC demanded white business contribute towards reparations,
their black counterparts were equally opposed to the idea’ in W Gumede Thabo
Mbeki: The battle for the soul of the ANC (2004) 225, as cited by Desai (n 9
above) 56-57.
74 Khulumani Support Group Khulumani! Speak Out! December 2006.
 8 Ten years of democracy in South
Africa: Revisiting the AZAPO
decision

Ntabiseng Mogale

1 Introduction

The advent of a non-racial democracy in 1994 and the coming to

power of a black majority government saw the dismantling of
apartheid in the legal sense. This victory came about against the
backdrop of a costly failure by the apartheid government to sustain a
prosperous economic climate. Several programmes, including the now
defunct Reconstruction and Development Programme (RDP), were
immediately introduced to redress the damage caused by apartheid
and to rebuild a ‘new’ South Africa. These events unfolded against the
backdrop of a negotiated settlement between mainly two opposing
parties. The apartheid government could not continue to hold power
and the liberation movement and its allies could not take over power
without further protracted strife and loss of life. It was during this
time that the framework for reconciliation on the basis of the truth
about the past was mooted. Although the situation was fragile, the
mood was positive and promising, especially for victims of apartheid.
This chapter will look at whether the decision of the
Constitutional Court in Azanian People’s Organisation (AZAPO) &
Others v President of the Republic of South Africa,1 allowing amnesty
and limiting the role of international law, should still apply to South
Africa today. The Azanian People’s Organisation (AZAPO), an
organisation representing a significant number of the victims of
human right abuses and apartheid in South Africa, brought a case
against the President of the Republic of South Africa arguing that the
Promotion of National Unity and Reconciliation Act,2 specifically
section 20(7) of the Act, was unconstitutional on the grounds that it
was inconsistent with the right to have justiciable disputes settled by
a court of law or other independent tribunals as section 34 of the final
Constitution provides. The group also demanded that the state not
interfere with the victims’ rights to sue the perpetrators in a civil
court and that it provide victims with a form of reparation for their

1
1996 4 SA 671 (CC), 1996 8 BCLR 1015 (CC) (AZAPO).
2 Act 34 of 1995 (TRC Act).

127
128 Nthabiseng Mogale

suffering and losses. I will argue that the decision taken by the
Constitutional Court was not in line with the spirit of the Constitution
and thus compromised the rights and dignity of those that the
Constitution meant to protect.
I will argue that the right to seek redress is a constitutional right
that cannot be taken away arbitrarily, nor traded for a lesser more
uncertain benefit such as the promise of future reparation. In fact, it
cannot be traded by anyone for anything at all, as it is both a national
and an international right bestowed on all South Africans as members
of the international community. I will show that, based on the
language used by the drafters of the TRC Act, the government
manipulated the legal rights of victims of apartheid to settle political
issues and thus promised reparations in bad faith. A direct personal
human right was taken away in return for an indirect and broader
political benefit that to date has not been realised. The chapter will
further show that emphasis was put on amnesty as the route to
reconciliation and that the equally important issue of reparation was
downplayed, thus skewing the entire Act in favour of the
perpetrators. This raises the question of the morality and legality of
the Promotion of National Unity and Reconciliation Act and the
decision in AZAPO.
The preamble of the 1993 Constitution says the people of South
Africa have adopted the Constitution as the supreme law of the
Republic so as to heal the divisions of the past and establish a society
based on democratic values, social justice and fundamental human
rights.3 The 1993 Constitution further states that everyone has
inherent dignity and the right to have his or her dignity respected and
protected.4 The above extracts demonstrate that the cornerstone and
fundamental values of the Constitution were to protect all citizens
equally and restore and respect their human dignity. This intention is
clearly spelt out as one of the functions of the Truth and
Reconciliation Commission (TRC) to ‘make recommendations to the
President with regard to: the policy which should be followed or
measures which should be taken with regards to the granting of
reparation to victims or the taking of other measures aimed at
rehabilitating and restoring the human and civil dignity of victims;
and make recommendations to the President with regard to the
creation of institutions conducive to a stable and fair society and the
institutional, administrative and legislative measures which should be
taken or introduced in order to prevent the commission of violations
of human rights.’5

3 The Constitution of the Republic of South Africa Act 200 of 1993.

4
1993 Constitution (n 3 above) sec 10.
5 TRC Act (n 2 above) 801.
 Chapter 8 129

Despite the final Constitution6 ensuring human dignity, fairness

and equality in our new society, the Promotion of National Unity and
Reconciliation Act deprived victims of apartheid of several
opportunities to receive and exercise these rights.

2 Background to the TRC process

The Truth and Reconciliation Commission, which was set up by the

TRC Act, was one of the biggest milestones the democratic South
African government negotiated successfully after the 1994 transition.
According to the preamble of the Act, the objective of the
Commission was
to provide for the investigation and the establishment of as complete a
picture as possible of the nature, causes and extent of gross violations of
human rights committed during the period 1 March 1960 to the cut-off
date contemplated in the Constitution, within or outside the Republic,
emanating from the conflicts of the past, and the fate or whereabouts of
the victims of such violations; the granting of amnesty to persons who
make full disclosure of all the relevant facts relating to acts associated
with a political objective committed in the course of the conflicts of the
past during the said period; affording victims an opportunity to relate
the violations they suffered; the taking of measures aimed at the
granting of reparation to, and the rehabilitation and the restoration of
the human and civil dignity of, victims of violations of human rights;
reporting to the Nation about such violations and victims; the making of
recommendations aimed at the prevention of the commission of gross
violations of human rights.7
The Act also establishes committees within the Commission and
confers certain powers, duties and functions to the Commission.
The Preamble of the TRC Act further quotes from the epilogue of
the interim Constitution8 that ‘there is a need for understanding but
not for vengeance, a need for reparation but not for retaliation, a
need for ubuntu but not for victimisation’. The interim Constitution
further states that ‘in order to advance such reconciliation and
reconstruction, amnesty shall be granted in respect of acts, omissions
and offences associated with political objectives committed in the
course of the conflict of the past.’9 This provision clearly links
reparation, ubuntu, reconciliation and reconstruction of the South
African society with amnesty. The sentiment of this provision is that
amnesty will be granted as a step to facilitate and ensure
reconciliation, reparation, and reconstruction and development of

6 The Constitution of the Republic of South Africa 1996 (Act 108 of 1996).
7 TRC Act (n 2 above).
8
1993 Constitution (n 3 above) preamble.
9 As above.
130 Nthabiseng Mogale

the society. This means that amnesty was originally conceived as a

process which was closely related to the process of reparation.

3 Pertinent issues in the debate

3.1 The role and status of the South African Constitution in

AZAPO

Although the AZAPO case was brought to the courts during the early
stages of our constitutional democracy, precedents had already been
set. In fact, we were so new into the democratic dispensation that we
were still using the interim Constitution. However, the progressive
decisions that the Constitutional Court had already taken with regard
to more complex matters such as the death penalty had created a
level of trust and confidence in the judiciary under the new
dispensation, particularly the Constitutional Court. Over and above
that and with the strong and uncompromising respect for human rights
and the values of the Constitution, the Court seemed to understand
its role as a separate pillar of government.
AZAPO will go down in history as one of the few instances where
the Constitutional Court went against key principles and precedents
it had set, thus undermining the very constitutional culture it was
meant to develop. According to Mohammed DP, the Court was not
concerned with the debate or the wisdom of its choice of mechanism,
but only with its constitutionality.10 The above statement is
unfortunate because constitutionality has wisdom as its basis, the
mechanism that a court of this stature chooses also has to be thought
through carefully, and wisdom applied. Disregard for wisdom may
result in a disregard for people’s rights, especially since human rights
are intangible, not packages that one can touch and feel. It requires
wisdom to understand the abstract notion of human rights and how
these rights are meaningful to their owners. One can safely argue that
the human rights discourse is based on sensitivities that require
wisdom.
Reparation is a form of justice. The delay in finalising reparation
and providing it adequately is in itself a denial of justice. The
Constitutional Court glaringly ignored the implication of the non-
committal attitude of parliament in relation to reparations. Although
the Court has no power to tell parliament how to provide services
and the type of services to provide,11 it can pronounce on the rate of

10 AZAPO (n 1 above) 673-E.

11
Soobramoney v Minister of Health, Kwazulu-Natal 1998 1 SA 430 (CC), 1997 12
BCLR 1696 (CC) (Soobramoney).
 Chapter 8 131

delivery.12 Unfortunately it did not do so in this case. The epilogue of

the interim Constitution in the same breath proclaimed the
importance of reparations and the importance of amnesty, and
neither of these obligations should have been elevated above the
other. In addition, the final Constitution, in its preamble, emphasises
the need to heal the divisions of the past and improve the quality of
life of all citizens. These pronouncements go to the heart of
reparations and justice. The basis of the divisions and the poor quality
of life of black people in South Africa were a direct result of
apartheid. This provision was therefore to ensure redress and justice
for victims of apartheid and the Court should have interpreted it in a
generous and purposive manner.

3.2 The legal principles underlying AZAPO

In all legal cases, especially the critical ones such as AZAPO, courts
develop new principles as well as highlight existing ones. The
following are the principles that came out of AZAPO:
• Section 20(7) of the TRC Act was authorised by the interim
Constitution and the attack upon its constitutional validity must
therefore fail.
• The issue of the role of international disputes of this nature is
irrelevant and secondary to the issue that the victims had brought to
court, namely that section 20(7) was inconsistent with the
Constitution.
• International law may be used only to interpret our law rather than as
a basis of law in itself. International law, especially international
human rights law, has always been applied as a stand-alone in specific
situations and has always been used in South Africa as a norm and
standard. In fact, our Bill of Rights is based not only on the
interpretative values, but also on the norms and standards of
international law.
• International law has to be formally incorporated into South African
law before it can become part of the law. This is despite Dugard’s
assertion that South Africa’s process to incorporate international law
is cumbersome and has the potential for unnecessary delays.13
• International law distinguishes the position of perpetrators of acts of
violence in the course of war. In the case of internal conflict of groups
inside a sovereign state, there is no obligation on the part of a
contacting state to ensure the prosecution of those who might have
performed acts of violence or other acts which would ordinarily be
characterised as serious invasions of human rights.14
• Amnesty has to be granted to persons who make full disclosure
despite the weak checks and balances put in place to verify the facts.

12
Government of the Republic of South Africa and Others v Grootboom & Others
2001 1 SA 46 (CC), 2000 11 BCLR 1169 (CC) (Grootboom).
13
J Dugard International law — a South African perspective (2nd ed) (2000) 55.
Dugard points out that government departments often insist on scrutinising
treaties and completely satisfying themselves that there is no conflict between
provisions of the treaty and domestic law.
14 AZAPO (n 1 above) 674.
132 Nthabiseng Mogale

Ironically, this conditionality approach was hailed internationally and

by the Court as an indication of non-arbitrariness on the part of
parliament.

3.3 Analysis of the TRC Act and its impact on justice for victims
of human rights violations

3.3.1 Amnesty and reparations: The unequal benchmarks

The main objectives of the Commission were unbalanced and skewed

from the beginning. Unlike the clear and certain provisions relating to
amnesty, the provisions relating to reparations remain ambiguous and
vague. According to the TRC Act, one of the objectives was to
facilitate the granting of amnesty to persons who made full
disclosures of all the relevant facts relating to acts associated with a
political objective. The controversy regarding this objective is that
the Commission made it very easy to fulfil the requirements: The
team of investigators that was tasked to verify the facts had only to
present corroborating evidence of truth, rather than evidence that
confirmed the truth beyond reasonable doubt. This simply meant that
perpetrators had to provide some support for their evidence, and if it
sounded plausible enough, it would pass for the truth. According to
the Oxford Encyclopaedic English Dictionary, one of the meanings of
‘plausible’ is ‘persuasive but deceptive’.15 This means the TRC’s
approach was not altogether scientific and somewhat arbitrary and
goes against the approach of the court in S v Makwanyane when it
cautioned against the element of chance that existed at every stage
of the process in cases decided during the apartheid era.16 Because of
the possibility of distortions, more stringent processes ought to have
been put in place to verify and corroborate facts. This would have
influenced the attitude of the Court to also insist on definite evidence
and certain truth before amnesty was confirmed.
Secondly, the Court endorsed a process that was presented as a
judicial process, but failed to observe critical judicial principles of
procedure, and speedy and accessible justice. Although the amnesty
hearings applied procedures bearing the hallmarks of the Anglo-Saxon
adversarial system, adopted in South African courts, the stringent
rules on admissibility of evidence used before adversarial courts
seemed not applicable to the same extent.17 The standard of proof
set by the Commission did not require proof beyond reasonable doubt,

15 JM Hawkins & R Allen R (eds) Oxford Encyclopaedic English Dictionary (1991)

1111.
16 1995 3 SA 391 (CC), 1995 6 BCLR 665 (CC) para 48 (Makwanyane).
17 A O’Shea ‘The concept of superior orders as it applies to the granting of amnesty
by the truth commission’ (1996) 13 The Human Rights & Constitutional Law
Journal of Southern Africa 37 39.
 Chapter 8 133

only probability. The issue of probability as a standard of proof is

viewed with scepticism in some legal circles, especially in Europe.18
The scepticism is based mainly on the complexities that go with
developing a satisfactory logical model for factual decision-making
processes necessary for legal matters. Taruffo argues that vesting a
court with the power to determine the weight of proofs on the basis
of a discretionary evaluation excludes the application of legal
standards of proof and does not even suggest any reliable positive
standards. This discretionary model means the judge must be
intimately and individually persuaded of something. Roughly
speaking, it does not matter whether the judge has specially strong
evidentiary bases to believe what he or she believes. His or her deep
individual conviction has to be well rooted in his or her feelings and
produce a ‘moral certainty’ about the facts of the case. But this does
not mean reliance on the standards of proof, only reliance upon
personal conscience.19
On the other hand, the victims had to pass the stringent test of
proving that their violations had been gross. The use of this word
discouraged a significant number of victims who felt that their
violations may not have been regarded as gross, because there was no
death, disability or serious injuries. Even in instances where violations
were regarded as gross, there was no guarantee of reparations.
Reparations would be recommended by the Commission to the
President, who may act on these recommendations but is not obliged
in any way. The wording of the Act can be interpreted to say that, for
perpetrators: ‘by telling some semblance of the truth that may not be
refuted by the victims and/or the investigators, amnesty is
guaranteed, while for the victims, by telling their story they may be
regarded as victims and may be granted reparations depending on the
availability of resources that parliament still has to decide upon.’20
One was certain, the other unclear and dependent on an entire
process. This then nullifies the perceived conditionality of amnesty
and the enforceability of reparations.

3.3.2 Amnesty and reparations: Unequal outcomes

If one looks at the language used to describe the functions of the

different committees of the Commission, it could be argued that the
Commission gave equal emphasis to the granting of amnesty and the
granting of an opportunity for victims to give their testimonies, and
equated the two procedures, rather than dealing with amnesty and

18 M Taruffo ‘Rethinking the standards of proof’ (2003) 51 Journal of Comparative

Law 659 663.
19
Taruffo (n 18 above) 667.
20 My own words and emphasis.
134 Nthabiseng Mogale

reparations as presented in the Act. The provisions stipulating the

functions of the Commission say:
The Commission shall facilitate, and initiate or co-ordinate, the
gathering of information and the receiving of evidence from any person,
including persons claiming to be victims of such violations or the
representatives of such victims, which establish the identity of victims
of such violations, their fate or present whereabouts and the nature and
extent of the harm suffered by such victims.21
The emphasis here is on gathering facts and details. What about those
who sought justice? After hearing of the brutality their loved ones
suffered, their right to approach a court was curtailed. Over and
above this limitation, reparation was not guaranteed.
Where amnesty is granted, the decision is published in the
Government Gazette, a measure that ensures formalisation of the
decision, while the Reparations Committee made recommendations
to the President who still had to make the final decision.
It is safe to assume that the government never intended to provide
reparations, thus the poor reparations plan. This means that the
victims were never seen as worthy of compensation, and thus for their
dignity to be restored as the Constitution demands. The drafters seem
to have started the TRC process without the requisite good faith,
especially for the victims. The emphasis and focus was more on
moving forward and leaving the past behind.

3.3.3 Certainty of amnesty versus the uncertainty of

reparations

According to the Act, the granting of amnesty is equated to the

gathering of information. Section 4(b) says ‘facilitate and initiate or
co-ordinate, the gathering of information and receiving of evidence’,
while section 4(c) says ‘facilitate and promote the granting of
amnesty’. According to section 20(7)(a) and section 20(8) of the Act,
once amnesty is granted there will be no charges that can be brought
against the perpetrator. This adds to the certainty of what this
process grants perpetrators. There is a clear and unambiguous
pronouncement about the legal status of the perpetrators which is
absent in relation to the legal status of the victims. There is no room
for recourse for the victims in cases where the information the
perpetrators have given does not enlighten them about the truth
regarding the fate of their loved ones. This means that truth is not
guaranteed, reparation is not a certainty, yet these were some of the
trade-offs presented to victims to weigh against the granting of
amnesty.

21 TRC Act (n 2 above) sec 4(b).

 Chapter 8 135

According to the Act, after the Reparations Committee has made

recommendations to the President, he, in turn, would then make
recommendations to parliament, which, through its Joint Committee,
would consider the recommendations and reach a decision. After
parliament has made a decision, it would work out regulations to
guide the implementation of the recommendations and only then
implement the reparations measures recommended by the President.
The above process, captured in section 27 of the TRC Act, assumes
that the President will provide for reparations. I do not believe he will
go as far as to dishonour a constitutional directive. However, the
provisions as stated in the Act are vague and broad, and thus open to
being undermined. The President is in a position to provide limited
symbolic reparations and then close the book on the issue. Victims
may be left feeling cheated, and the perpetrators feeling untouchable
yet again.
The rationale for this stringent process is that parliament has to
ensure that the country has sufficient resources. This is a legitimate
concern that the Court raised in the case of Van Biljon v Minister of
Correctional Services.22 However, this concern is raised against and is
in direct contrast to the high costs incurred by the government, and
ratified by parliament, to provide legal aid to the perpetrators
applying for amnesty. Because it was not known how many people
would come forward for amnesty, parliament did not know the extent
of the financial burden to which it would be bound. Despite this
unclear situation, parliament went ahead and confirmed its financial
responsibility to amnesty seekers through the Act. The same
parliament then argues that it needs to look at what the Commission
will recommend, see if it has the financial resources and only then
provide reparations.
The above further indicates that the process of applying for and
being granted amnesty was very clear with time frames, and set goals
and objectives, while the process for the victims to testify and qualify
for reparations was very unclear, open-ended and still incomplete to
date. The reparations process depends totally on people other than
the commissioners, while the amnesty process depended entirely on
the commissioners. They could make all the decisions and the
perpetrators would be able to move on speedily with their lives, while
the victims would have to wait for a long and cumbersome
parliamentary process.

22 1997 4 SA 441 (C), 1997 6 BCLR 789 (C) para 49. In this case the Court said the
government had to provide HIV treatment for HIV-positive prisoners, but needed
to consider the availability of resources.
136 Nthabiseng Mogale

3.3.4 Incentives for perpetrators to tell the truth versus

incentives to quell the anger of victims

According to the TRC Act, it was important that the Commission have
regard for the perspectives of the victims and the motives and
perspectives of the alleged perpetrators.23 However, it seems that
the Commission gave greater consideration to the perspectives of the
perpetrators than of the victims. The victims were made to feel guilty
for asking for reparations. The debate about whether the money
would heal their deep wounds was always raised as a justification for
victims to accept truth as their only entitlement in the process.
Feelings of anger were tacitly discouraged. Although the latter
statement has grave implications, I make it with confidence. The fact
that the Archbishop wore his cassock to the hearings was in itself
added pressure for the mood to be sombre and reverent, despite what
the victims may have felt at that time. Africans are generally a God-
fearing people. A priest, especially one in formal regalia, is seen as a
servant of God on duty, doing God’s work. Should this have been
allowed? The anger of the victims was muzzled rather than allowed to
be manifested and dealt with. This one-sided approach was
particularly visible during President Mandela’s tenure, when he
always acknowledged ‘white fears’ and asked black South Africans to
be understanding and sensitive to this. No system has been set up for
victims to deal with their anger in a constructive and restorative way.
The failure of the government to provide adequate reparations is
itself an added source of anger. This has never been acknowledged.
Furthermore, this disregard and indifference happens against the
backdrop of the complete restoration of the lives of the perpetrators
who went to the TRC.

4. The position of international law in relation to

prosecution, reparations and other forms of
redress for victims of human rights violations

4.1 The history of international law in South Africa

As John Dugard points out, ‘[t]he relationship between international

law and municipal law troubles both theorists and courts’.24
International law consists of treaties, that reflect the explicit
agreement of states, and custom, comprising rules of conduct in the
international sphere to which states have tacitly consented.25 South

23 TRC Act (n 2 above) sec 3(a).

24
Dugard (n 13 above) 43.
25 Dugard (n 13 above) 47.
 Chapter 8 137

Africa is one of the countries that played a critical role not only in
signing and ratifying some of the treaties, but also in participating in
drawing them up.26 Following Roman-Dutch writers, earlier South
African judges did not distinguish between international and
municipal law. Rather, they applied rules from both these bodies of
law with equal facility in domestic disputes with an international
dimension.27 However, the apartheid government later changed its
commitment and applied international law in domestic disputes very
selectively and with no clear justifiable pattern. This inconsistency
extended even to the manner in which international law was taken
into account. The executive structure of the old apartheid
government signed and ratified many instruments which were never
incorporated into domestic law because of the lack of endorsement
by the legislature. The confusion and double standards further
translated into complex decisions by the courts, especially after it
became clear that the government of the day was rejecting
international law within the South African legal order, especially in
relation to cases of a political nature. Where the issue demanded that
the courts consider international law, attempts were made to come
up with new goalposts for its incorporation.28
Before this defensive attitude and confusion set in, South Africa
was one of the countries that, over a long period of time, consistently
applied a monist approach in all its decisions. International law as
part of municipal law was a principle that the South African courts
respected without compromise. John Dugard has used the comments
of Kotze CJ and Jorissen J in CC Maynard et al v The Field Cornet of
Pretoria to illustrate the extent to which this principle was applied by
the courts.29 Kotze CJ cited a passage from Wharton’s Digest that the
‘the Law of Nations makes an integral part of the laws of the land’30
and added by quoting Sir Henry Maine that ‘the state which disclaims
the authority of International Law places herself outside the circle of
civilised nations’.31 Dugard also cites Jorissen J who declared that
there is no doubt that the law of this Republic must be viewed and
interpreted, in case of ambiguity, with due regard to the higher law,
which is accepted in all civilised countries as ideal without further
proof.32

26
J Dugard ‘SA judiciary and international law in the apartheid era’ (1998) 12 South
African Journal on Human Rights 110 112.
27 Dugard (n 26 above) 111.
28
Dugard (n 13 above) 53. Rumpff J in Nduli v Minister of Justice 1978 1 SA 893 (A)
(Nduli) added to the confusion by stating that only rules regarded as universally
recognised could be incorporated into our law.
29
CC Maynard et al v The Field Cornet of Pretoria (1894) 1 SAR 214 as discussed in
Dugard (n 13 above) 45.
30 CC Maynard (n 29 above) 223 as quoted in Dugard (n 13 above) 45.
31
As above.
32 CC Maynard (n 29 above) 232 as quoted in Dugard (n 13 above) 45.
138 Nthabiseng Mogale

The above pronouncements are part of a larger body of South

African jurisprudence before the legalisation of apartheid in 1948.

4.2 The position of international law after 1994

Since 1994, the situation has changed drastically. Both the interim
and final Constitutions give clear direction that remedy the problems
of the past.33 The interim Constitution included a stance on
international law, and the final Constitution carries this through with
very few changes. In fact, both documents are similar in most
respects in their treatment of international law.34 According to the
Constitution ‘customary international law is law in the Republic unless
it is inconsistent with the Constitution or Act of Parliament’.35 There
can be no doubt that the ‘constitutionalisation’ of this rule gives
international law additional weight. It means it cannot be overridden
by national legislation, unless that provision is clearly inconsistent
with international customary law.36 Section 233 further states that
when interpreting any legislation, every court must prefer any
reasonable interpretation of the legislation that is consistent with
international law.37
This provision ensures that courts will be guided by international
norms and the interpretation given these norms by international
courts and other such institutions. Although the Court in AZAPO
deliberately narrowed its application of international law, it had
decided differently in S v Makwanyane38 when it declared that in the
context of section 35(1) of the interim Constitution, now section 39 in
the final Constitution, public international law would include binding
and non-binding law. It added that international agreements and
customary international law should be the framework within which
rights in the Constitution, especially those in the Bill of Rights, should
be evaluated and understood. The Court added that the guidance was
mainly with respect to the interpretation of those rights.
It is thus surprising that the Court’s interpretation of international
law in AZAPO was so restrictive. In fact, its responses were so similar
to those of the apartheid era judiciary that parallels could be drawn.
There seemed to be a deliberate downplaying of the role of
international law, whereas the Constitution had elevated
international law to new heights. The shift of the Constitutional Court
away from its established use and integration of international law in
its judgments and from an international law-friendly environment is

33 n 16 above 413-314 as quoted and discussed in Dugard (n 13 above) 51.

34
As above.
35 SA Constitution (n 6 above) sec 232.
36 Dugard (n 13 above) 60.
37
As above.
38 n 16 above 413-314 as quoted and discussed in Dugard (n 13 above) 264.
 Chapter 8 139

similar to the period after 1948 when apartheid was formalised and
the then government of South Africa treated the United Nations (UN)
as an enemy.39 At that stage the judiciary returned to pure Roman-
Dutch law, but excluded the Roman-Dutch jurists’ respect for
international law. Although the shift in AZAPO was not that drastic,
the aim of achieving political objectives is similar.
Secondly, again in State v Makwanyane,40 the Court found that in
deciding whether something constitutes international law, sources of
international law must be considered.41 However, in the Azapo case,
it failed to consider the sources of international law on the right of a
victim both to have the perpetrators of a war crime or crimes against
humanity punished by a competent tribunal and to seek civil redress
from the perpetrator.42 This shift, like the previous one, is similar to
the introduction of a new restrictive measure by Rumpff CJ in Nduli
when he stated:
It was conceded by counsel for the appellants that according to our law
only such rules of customary international law are to be regarded as
parts of our law as are either universally recognised or have received the
assent of this country ...43
At face value this sounds reasonable, yet it is restrictive and difficult
to apply effectively without limiting rights. Once one applies a
restrictive and narrow interpretation to the role of international law,
the rights of victims are limited and compromised.
The Court likewise failed to follow its earlier approach of
requiring a balancing test where there is a limitation of fundamental
rights. For example, in S v Mhlungu44 the Court typified the
protection of fundamental rights in chapter 3 of the Constitution as
a deeply entrenched feature of the whole constitutional scheme. In
AZAPO, it equates the postamble with the fundamental rights in
chapter 3. This decision suggests that the protection of fundamental
rights is subjective and depends on how vigorously the judges choose
to enforce it.45 This is similar to the subjective attitude adopted by
Curlewis J in the case of S v Mncube & Nondula, when he said the
Palestinian Liberation Organisation (PLO) was a bunch of thugs who
kill Jews.46 The personal feelings of the judge are clearly reflected
and were allowed to affect the outcome. The judge’s approach

39
As discussed in Dugard (n 26 above) 113.
40 Makwanyane (n 16 above) para 309.
41
Z Motala ‘The Constitutional Court’s approach to international law and its method
of interpretation in the Amnesty decision’: Intellectual honesty or political
expediency?’ (1996) 21 South African Yearbook of International Law 29 30.
42
As above.
43 Nduli (n 28 above) as referred to in Dugard (n 13 above) 53.
44 1995 3 SA 867 (CC).
45
Dugard (n 13 above) 30.
46 S v Mncube & Nondula 1991 3 SA 132 (A) as discussed in Dugard (n 26 above) 123.
140 Nthabiseng Mogale

ignored overwhelming evidence showing regard for such

organisations as legitimate role-players internationally.
The Azapo decision was a far cry from Dugard’s assertion that
‘since the establishment of the new Constitutional order in 1994, both
the Constitutional Court and ordinary courts have shown a great
willingness to be guided by international human rights law’.47 Dugard
has argued that ‘[d]ecisions of the European Commission and Court of
Human Rights have provided the greatest assistance, but courts have
on occasion also considered the ‘views’ of the UN reports on human
rights matters’ and that ‘[w]hile a court must consider treaties to
which South Africa is not a party in interpreting the Bill of Rights, no
such rule exists in respect of treaties to which South Africa is not a
party where the Bill of Rights is not in issue. A treaty to which South
Africa is not a party is res inter alios acta and may not be considered
qua treaty, although it may be considered as evidence of a customary
rule’.48

4.3 The right of apartheid victims to seek redress

South Africa of the apartheid era was not a party to any human rights
conventions. It was bound by articles 55 and 56 of the United Nations
Charter, which required it to respect and promote human rights, but
the Charter was not incorporated into South African law. After 1994
several UN instruments were ratified, bringing the total number to
32.49 A significant number of UN instruments articulate the need for
the punishment of those who commit human rights abuses. If one
looks at individual UN instruments, one still finds consensus that there
is a need for respect for international law. For example, the Universal
Declaration of Human Rights has no legal enforceability, but is viewed
as an instrument with legal value, especially in relation to
interpreting the human rights and fundamental freedoms which can,
in turn, be enforced against member states. According to the
Universal Declaration, everyone has the right to an effective remedy
by the competent national tribunals for acts violating the
fundamental rights granted him or her by the Constitution or by law.50
Literature includes reparations, compensation or a legal judgment as
some of the common judicial remedies available to victims of human
rights abuses. According to the Convention of the Non-Applicability of

47
Dugard (n 13 above) 61.
48 As above, referring to S v Petane 1988 3 SA 51 (C).
49 According to the records of the Office of the Chief State Law Adviser
(International Law) Department of Foreign Affairs, Hatfield, Pretoria.
50 Art 8.
 Chapter 8 141

Statutory Limitations to War Crimes and Crimes Against Humanity,51

crimes against humanity are crimes, whether committed in time of
war or in time of peace.52 States that are parties to this convention
must take domestic measures to prosecute and punish those guilty of
these crimes. Article 4 further states that where statutory limitations
in this regard exist, measures must be taken to remove them.
Although these provisions were later qualified by article 5 of
Additional Protocol II,53 the intention of the drafters was never to
replace one with the other. The purpose was to strengthen the
Geneva Convention to protect the rights of all involved in conflict.
The duty and responsibility to prosecute and punish perpetrators
continues to be in force. In fact, it can be argued that the
Convention54 was drawn up with South Africa in mind, because it
specifically mentions ‘inhuman acts resulting from the policy of
Apartheid’ as some of the crimes that have to be prosecuted and
punished. In addition, the Principles of International Co-operation
state that war crimes and crimes against humanity, wherever they are
committed, shall be subject to investigation and the persons against
whom there is evidence of having committed such crimes shall be
subject to tracing, arrest, trial and, if found guilty, to punishment.55
Principle 2 further states that ‘every state has the right to try its own
nationals for war crimes against humanity’.56
Over the years there has been a growing trend to criminalise
international law by creating structures to prosecute and punish those
responsible for crimes against humanity. Although this started in
earnest after World War II with the Geneva Conventions of 1949 and
the Nuremberg Charter, which attached responsibility mainly to
individuals, the Yugoslav Statute, which recognised crimes against
humanity for non-international armed conflict, and the Rwanda
Statute,57 which acknowledged crimes that occur during peacetime,
set a different tone altogether. It is acknowledged globally that there
is a need for crimes against humanity to be prosecuted and punished.
To counter this obligation, a number of states, including South Africa,
in AZAPO, use article 6(5) of Protocol II of the Geneva Convention in
support of their refusal to invalidate amnesties. The context, drafting

51
Adopted and opened for signature, ratification and accession by General
Assembly Resolution 2391 (XXIII) of 26 November 1968.
52 Art 1.
53
Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to
the Protection of Victims of Non-International Armed Conflict (adopted on 8 June
1977).
54
Protocol (n 53 above) art 1.
55
Principles of International Co-operation in the Detection, Arrest, Extradition and
Punishment of Persons Guilty of War Crimes and Crimes against Humanity
(adopted by General Assembly Resolution 3074 (XXVIII) of 3 December 1973)
principle 1.
56 As above.
57
T Meron ‘Is international law moving towards criminalisation?’ (1998) 9 European
Journal of International Law 18 22.
142 Nthabiseng Mogale

history and subsequent interpretation by the International Committee

of the Red Cross (ICRC) all indicate that this provision was never
intended to shield violators of international humanitarian law,
despite the Constitutional Court’s attempt to use it that way.58 In
addition, the Court cannot recognise and apply one part of the
provision and render another part of the same provision irrelevant. In
AZAPO, Mohammed DP pointed out that the protocols were irrelevant
to South Africa, but added that they even advocate for amnesty. It
would have been more credible for the Court to have shown that the
protocols remain irrelevant, rather than apply them selectively.
In AZAPO, Mohammed DP repeats the discredited approach
exhibited by Rumpff CJ when he suggests a new benchmark for the
role of international law in domestic cases in the Nduli case.59
Mohammed is suggesting that prosecution happens only when a
foreign state is involved, a concept that was never specified in the
Geneva Convention. This interpretation gives a new benchmark
altogether to article 6(5) of the Convention. As pointed out in Dugard,
when interpreting any legislation, every court must prefer any
reasonable interpretation of the legislation that is consistent with
international law over any alternative interpretation that is
inconsistent with international law.60 In addition, Conradie J
comments in State v Petane 61 that
it is not clear whether Rumpff CJ, in giving the judgment in Nduli, meant
to lay down any stricter requirements for the incorporation of
international law usage into South African law than the requirements
laid down by international law itself for the acceptance of usage by
states. International law does not require universal acceptance for a
usage by states to become custom.62
Nor does the Geneva Convention apply only to invasions by foreign
states, one might add. Giving a different interpretation to the South
African position on international law represents an abandonment of
the idealism of 1993 that sought ‘to bring international law and
domestic law in harmony with each other’.63
The Constitutional Court’s interpretation was flawed. According
to Dugard, an unincorporated treaty may be taken into account in a
challenge to the validity of legislation on the grounds of
reasonableness, which in turn is inextricably linked to the
presumptions of legislative intent, and there is a presumption that the

58
N Roht-Arriaza ‘Truth commissions and amnesties in Latin America: The second
generation’ ASIL Proceedings of 92nd Annual Meeting (1998) 313 314.
59 Nduli (n 28 above).
60
Dugard (n 13 above) 52.
61 1988 3 SA 51 (C).
62 S v Petane (n 61 above) 56-57 as quoted in Dugard (n 13 above) 53.
63
R Keightley ‘Public international law and the Final Constitution’ (1996) 12 South
African Journal on Human Rights 405 412 cited in Dugard (n 13 above) 56.
 Chapter 8 143

legislature did not intend to violate South Africa’s international

obligations.64 AZAPO’s challenge was that the amnesty provisions
were unreasonable and against several international instruments,
some of which South Africa was a party to. The Court should have
looked closely at what the intent of the legislature was and weighed
this against the outcome of the amnesty provisions. The right to seek
redress should have been considered in view of the intention of
legislators to restore dignity, find truth and afford, for the first time,
justice to the victims of apartheid.

4.4 The duty to prosecute and punish perpetrators of human

rights abuses

Over and above what international legal instruments say, scholars all
over the world have supported the need to prosecute human rights
abuses after a dictatorship regime is ousted. Some countries have
responded by granting de facto impunity; in others, the military has
insisted upon amnesties which are designed to encourage amnesia.65
The fulcrum of the case for criminal punishment is that it is the most
effective insurance against future repression.66 By laying bare the
truth about violations of the past and condemning them, prosecutions
can deter potential lawbreakers and discourage the public from
becoming complicit in state-sponsored violence in the future.67
In traditional international law, the individual played an
inconspicuous part because the international interests of the
individual and his or her contacts across the frontier were
rudimentary. This is no longer the case. While statements such as that
individuals are only objects and not subjects of international law have
been shown to be devoid of substance, they reveal clearly the
intimate connection between the question of the subjects of
international law and the notion of human rights and fundamental
freedoms. The claim of the state to unqualified exclusiveness in the
field of international relations was tolerable at a time when the
actuality and the interdependence of the interests of the individual
cutting across national frontiers were less obvious than they are
today.
According to the 1984 United Nations Convention, every state
shall provide for universal jurisdiction over gross violations of human
rights and humanitarian law, which constitute crimes under
international law. Universal jurisdiction has thus been recognised
with regard to such crimes as attacks on the safety of civil aviation

64
Dugard (n 13 above) 61-62.
65 DF Orentlicher ‘Settling accounts. The duty to prosecute human rights violations
of a prior regime’ (1991) 100 Yale Law Journal 2525 2539.
66
Orentlicher (n 65 above) 2542.
67 As above.
144 Nthabiseng Mogale

and maritime navigation, and also in cases of the egregious

infringement of human rights such as torture.68 The idea that wrongs
should be redressed and reparation should be made to the injured is
among the most venerable and most central of legal principles.
Besides legal instruments that call for prosecution, the moral and
social benefits of prosecution in a country that is rebuilding itself
cannot be overemphasised.69
Many scholars agree that an approach based on end results alone
is not helpful, thus it is essential that parallel approaches be applied.
The two main approaches are the utilitarian approach and the
retributive approach. Punishment should both deter unacceptable
behaviour and also set norms for future behaviour. Utilitarians tend
to focus on consequences that will deter future behaviour, while
retributionists focus on setting norms and standards to ensure that the
unacceptable behaviour is unlearnt. Whichever option is chosen,
punishment has to restore the balance within society, especially for
the victim, if one assumes that the perpetrator has received some
benefit from breaking the rules, and thus focuses on restoring
equilibrium for the victim.70 Punishment is viewed as a form of
redress.71 In the context of state-sponsored crimes, participants in
repressive enterprises have received job security, status and a
psychological sense of superiority — at times, as in Eastern Europe;
material gain was indeed part of the bargain.72 So it also was in South
Africa. Like the retributive approach, the denunciation model of
punishment focuses on the symbolic and norm-creating qualities of
punishment for the larger society. However, it is clear that one
cannot create norms to denounce certain behaviour and mechanisms
to punish it, and then refuse to apply these measures. Our
Constitution is an admirable document that sets new norms and
denounces human rights abuses. It also promises to restore dignity to
and provide justice and equality for all before the law. The outcomes
of AZAPO did not achieve this, especially for victims of past abuses.
The TRC Act, if it had been applied generously and purposively,
would have increased social cohesion. The Act would have served as
a forum for ordered, fair resolution of disputes that threatened the
social fabric. Also, more subtly, by setting the norms for the
community, it would have reified the values embedded in the culture

68
Meron (n 57 above) 22.
69 Orentlicher (n 65 above) 2546.
70
N Roht-Arraiza ‘Punishment, redress, and pardon: Theoretical and psychological
approaches’ in N Roht-Arraiza (ed) Impunity and human rights in international
law and practice (1995) 13 16.
71
As above.
72 As above.
 Chapter 8 145

and established structures that created or sustained social behaviour

consistent with those values.73 No government should override the
victims’ needs for redress by subordinating them to a calculation of
greatest overall societal good. Redress should be victim centred and
negotiated within legal parameters that are above board and formal.
If one applies the principles of Grootboom, any such measures would
be regarded as unreasonable by virtue of having failed the vulnerable
groups.

4.5 Was the conflict in South Africa only internal and thus non-
international?

Contrary to the pronouncements of the Constitutional Court in the

Azapo case, the conflict in South Africa against apartheid was never
only internal. Like the victims of Nazi Germany, the liberation
movements of South Africa made history by pressurising the UN to
take a stand against apartheid. This resulted in the UN adopting the
International Convention on the Suppression and Punishment of the
Crime of Apartheid. There is no other country whose problems were
so succinctly captured in any UN instrument. Apartheid went on to
become a descriptive concept representing racism and brutality
internationally, as evidenced in the adoption of two more instruments
by the UN, namely the International Convention against Apartheid
Sports, and the Declaration on Fundamental Principles concerning the
Contribution of the Mass Media to Strengthening Peace and
International Understanding, to the Promotion of Human Rights and to
Countering racialism, Apartheid and Incitement to War. Apartheid has
now become a word that is used with regard to all the oppressed
peoples of the world. It is common to hear the Palestinians in the
Middle East referring to Israel as the apartheid regime. The
established tendency of equating Zionism to apartheid clearly
indicates how widely the concept of apartheid is recognised.
As a liberation movement the African National Congress (ANC)
relied greatly on the support of the international community. In fact,
the successful isolation of South Africa by the rest of the world is a
vivid indication of how international the resistance against apartheid
became. Mohammed DP in pronouncing the judgment, acknowledged
the international dynamic of this conflict by mentioning the
‘punishing international economic isolation’74 as one of the reasons
why the apartheid government had to negotiate with the liberation
movements. If this conflict had not been international, how could the
international community have taken a stance to isolate South Africa?
All countries from time to time experience internal strife. Until this

73
Roht-Arriaza (n 58 above) 319.
74 AZAPO (n 1 above) para 1.
146 Nthabiseng Mogale

strife affects the population in particular ways that have been defined
internationally as unacceptable, the international community rarely
responds. In fact, the international community has often failed to
respond even where the conflict is clearly of an international nature,
as in the case of Rwanda and recently Darfur, Sudan. The conflict in
South Africa was so international that even the international
sympathisers formed the Anti-Apartheid Movement and operated in
very formalised ways, recognised and sometimes supported by their
governments. This resulted in the establishment of ANC missions in
several countries of the world. The formal treatment of ANC members
as refugees with specific benefits for refugees attests to this. The
leadership of the ANC was able to travel the world mobilising people
against apartheid as a result of the protection they received as
freedom fighters on the run from a repressive regime.
As early as the 1960s the ANC addressed the UN on apartheid and
its atrocities. This was despite resistance from some of the member
states and South Africa itself. Countless individuals were also afforded
this rare opportunity, as a courtesy of the UN, to become informed
about the conflict and take appropriate steps. This culminated in the
Apartheid Convention of 1966. Referring to this conflict as an ‘armed
conflict’ is a further indication of its international nature. Small
resistance groups inside the country would not have been able to
mobilise arms and other resources from sympathisers all over the
world unless there was international awareness and interest to
change the status quo in South Africa. Armed conflict also indicates
the magnitude of the conflict. Our conflict had reached proportions
of an international nature with trained armies, artilleries and similar
weaponry.
The process adopted to prepare and conduct the multiparty
negotiations in Kempton Park in the early 1990s is yet another
indication of the international nature of the resistance against the
apartheid regime. All the protection and assurances given to all
parties involved were based on international norms and standards, as
indicated by the active participation of the international community
including the UN. The fact that it was South Africans who talked
directly to one another and amicably came up with a negotiated
settlement that was heralded a miracle does not minimise this
conflict or make it an internal one. All the principles and lessons
applied were of an international nature, in some instances led by
international partners. The good offices principle provided by the
Zambian government is one such example. There is therefore no
doubt that the conflict in South Africa was never seen as a small
internal one. It was only an excuse for the Court to avoid applying the
required international norms. This in itself was disregard for
international customary law, rather than just overlooking an
irrelevant issue, as the Court claimed.
 Chapter 8 147

4.6 Did the court consider foreign law in interpreting the

prosecution of perpetrators in AZAPO?

The Truth and Reconciliation Commission of South Africa arguably

followed an established approach used by new democracies emerging
from conflict situations. South America led the way, even on debates
on whether amnesties granted to the military for crimes committed
while in power should be respected or not.75 Several Latin American
countries emerging from military dictatorships or a civil war set up
highly respected commissions to look into murders and
disappearances. Argentina set up the Sabato Commission to
investigate and try those responsible for ‘the dirty war’; Chile set up
the Rettig Commission under the policy of ‘all truth and as much
justice as possible’. Both countries also set up extensive
compensation programmes.76 Their commissions also included
amnesty provisions. For Argentina, it seems this step was premature,
because its parliament recently repealed the due obedience and
punto final laws, which had resulted in de facto amnesty, thus
allowing the reopening of many prosecutions.77 The new wave of ‘the
right to truth’ is sweeping through most countries that had initially
embraced amnesty as the only option to truth and stability. South
Africa followed these step, despite internal disquiet, and hoped it
would achieve what others had not. In Chile too, the issue of judicial
action against the perpetrators of human rights abuses, long thought
dead or at least dormant, has since regained momentum.78 Sadly for
politicians, this return to prosecution makes the point human rights
advocates have been making for years — that truth and justice are
complementary. One does not take the place of the other.79

5 Conclusion

In AZAPO, it is clear that the Constitution and the law became

instruments that were mobilised and manipulated by the state to
make it impossible for victims of apartheid to secure the enforcement
of their rights and freedoms. The legitimacy of constitutions of
African states drawn up after independence from colonisation was
undermined by the leitmotif of the time, which was ‘nation building’
and economic development. Diffusion of power and checks and
balances were presented as obstacles. Arguments were also
presented as to the failure of the constitutions to reflect the ‘African
personality’, thus from the beginning the legitimacy of these

75
Roht-Arriaza (n 68 above) 313.
76 As above.
77 As above.
78
As above.
79 As above.
148 Nthabiseng Mogale

constitutions was undermined and the ideology of legality replaced by

that of developmentalism. Could it be that the leitmotifs of our time
— ‘reconciliation’, ‘ubuntu’ and ‘national unity’ among others — were
the obstacles to our goals of reparation, truth and equality before the
law?
Although the language used in the TRC Act is in line with the
reconciliatory tone of the Constitution, it does not single out
reconciliation as the only option to breaking from the past. The
preamble of the Constitution clearly states other imperatives such as
recognising the injustices of the past, healing the divisions of the
past, equal protection of the law, and improving the quality of life of
all citizens as key pillars essential to the achievement of
reconciliation. However, the Court skewed its interpretation.
Reparations, a fundamental human right, were compromised, while
amnesty, a negotiated political privilege, was presented as a right.
Victims experienced secondary victimisation at the hands of their
long-time comrades and fellow human rights activists, while
murderers, torturers and some of the most hateful people ever to
walk this earth were elevated to heroes; Dirk Coetzee80 is one such
example.
The Court failed to bring to life the values and ideals enshrined in
our Constitution and overlooked the value of the visible rule of law.
The harmful effects of impunity are compounded when prosecutions
are foreclosed by amnesties or to appease some sectors. The essential
precondition for the effectiveness of law is that it shall display an
independence from gross manipulation and shall seem to be just. It
cannot seem to be so without upholding its own criteria of equity,81
rather than the criteria that fit in with a political agenda. The
challenge is then to revisit the decision in AZAPO to see if it did
evaluate the reasonableness of the actions of the executive and the
legislature with regard to the worsening and continued human rights
abuses of the most vulnerable groups.

80 A former policeman, mass murderer and human rights violator who co-operated
with the TRC to provide information on other abuses. Very little truth was
unearthed beyond his personal confessions.
81 Orentlicher (n 65 above) 2543.
 9 In defence of AZAPO and
restorative justice

Patrick Lenta

1 Introduction

The Constitutional Court’s response to the problem of transitional

justice in Azanian People’s Organisation (AZAPO) v President of the
Republic of South Africa1 is one of its most important decisions to
date, exceeding in political significance, one commentator has
suggested,2 even its decision on the death penalty.3 The juris-
prudential complexity not only of the decision itself, but also of the
controversies to which it has given rise makes AZAPO a landmark
decision.4 The growing number of studies on the subject of
transitional justice published since the decision and subsequent to the
cessation of the Truth and Reconciliation Commission (TRC) — the
most recent of which is Jon Elster’s superb historical and comparative
account, Closing the books5 — suggests the need for a re-evaluation
of the Court’s jurisprudence in this decision. Although AZAPO was
decided almost a decade ago and the TRC suspended its operations in
2001, new studies on transitional justice suggest that we should read
AZAPO, and South Africa’s response to the dilemmas of transitional
justice generally, in new ways that complicate previous critiques of
the decision. In particular, many of these studies suggest that
commentators who upbraided the Court in the wake of the AZAPO
decision advanced theoretical arguments that are either insufficiently
thought through or themselves vulnerable to overwhelming
objections. The aim of this essay is to re-examine the AZAPO decision
and the most telling objections to it to determine whether the Court’s
response to the dilemmas of transitional justice is coherent and
justified in the light of recent work on this subject.

1
1996 4 SA 671 (CC), (AZAPO).
2
J Dugard ‘Is the truth and reconciliation process compatible with international
law? An unanswered question’ (1997) 13 South African Journal on Human Rights
258 268.
3 S v Makwanyane 1995 3 SA 867 (CC).
4 H Corder ‘Judicial authority in a changing South Africa’ (2004) 24 Legal Studies
253 265-269, 270.
5 J Elster Closing the books: Transitional justice in historical perspective (2004).

149
150 Patrick Lenta

2 Transitional justice

The problem of transitional justice refers to difficulties experienced

by successor regimes following transitions from authoritarianism to
liberal democracy as they labour to determine a legally and morally
satisfactory response to gross human rights violations committed by
the outgoing regime and its agents, and also by those who struggled
against that regime prior to and during the transition to democracy.6
Recent history suggests three possibilities to successor regimes for
dealing with human rights abuses committed during the reign of the
previous regime: A blanket amnesty or pardon for all perpetrators of
gross human rights violations; prosecution, either selective or
wholesale, of perpetrators; or conditional amnesty, whereby amnesty
is granted to those perpetrators who provide (what available evidence
indicates as) a truthful account of violations. Successor regimes face
a demand for retribution from victims of human rights violations. Yet
the punishment of wrongdoers, and the seeming fortification of the
rule of law that many suggest this implies, may be in tension with the
establishment of a democratic rights-respecting nation, for which the
reconciliation of former adversaries seems indispensable. To
complicate matters further, successor regimes are constrained in
their choice of transitional measures by the compromises they have
reached with outgoing governments, without which the transition
would not have occurred, or would at least have been severely
delayed, allowing the further commission of human rights violations
and even, potentially, outright civil war.7
Most advocates of human rights prefer prosecutions to truth
commissions, even though by 1994 there had been 19 truth
commissions in 16 countries over the previous 20 years.8 Mark Osiel,
for example, contends that
perhaps the most crucial drawback of truth commissions is that they so
often fail on their own terms, ie, to achieve their own chastened aims.
They not only fail to do justice, as their proponents readily concede, but
also fail to explore key features of historical truth.9

6
See NJ Kritz Transitional justice: How emerging democracies reckon with former
regimes 3 vols (1995); AJ McAdams (ed) Transitional justice and the rule of law in
new democracies (1997); M Minow Between vengeance and forgiveness: Facing
history after genocide and mass violence (1998); R Teitel Transitional justice
(2000); RI Rotberg & D Thompson Truth v justice: The morality of truth
commissions (2000); PB Hayner Unspeakable truths (2001); J Elster (n 5 above);
EA Posner & A Vermeule ‘Transitional justice as ordinary justice’ (2004) 117
Harvard Law Review 761.
7
Elster (n 5 above) 188-215.
8 PB Hayner ‘Fifteen truth commissions — 1974 to 1994: A comparative study’
(1994) 16 Human Rights Quarterly 597.
9
MJ Osiel ‘Why prosecute? Critics of punishment for mass atrocity’ (2000) 22
Human Rights Quarterly 118 136.
 Chapter 9 151

Despite Osiel, supporters of the South African truth commission

deny that the TRC failed to ‘do justice’; they argue that the TRC
promoted a form of justice that has been termed ‘restorative justice’.
Against suggestions that the TRC ‘cannot and does not provide
“restorative justice” to victims’10 or, alternatively that restorative
justice is rhetorical ‘window-dressing’, ‘grandiose but largely empty’,
‘hopelessly muddled’ and ‘[unable to] provide a coherent moral
foundation for the TRC’,11 supporters of the TRC claim to advance a
version of ‘restorative’ or ‘transformative’ justice that provides a
coherent moral justification for the TRC.12
This essay addresses, as an instance of legal and moral reasoning,
the AZAPO decision, in which the Court declared South Africa’s
response to the dilemma of transitional justice, the TRC, to be
constitutional. Many supporters of retribution argue that in upholding
the constitutionality of the amnesty provision, the Court licensed the
sacrifice of justice, in the form of the prosecution of perpetrators, for
truth, in the form of full confessions by perpetrators motivated by the
prospect of amnesty.13 Other commentators have suggested that
since amnesty for civil liability is not explicitly mandated by the
postamble, the Court’s upholding of amnesty for civil liability was
unjustified, as was the indemnification of the state against civil
liability.14 Still others object that the Court was mistaken in its
rejection of the argument that international law forbids amnesty.15
This essay focuses on the most serious objections raised against
AZAPO to date and on the most damaging formulations of these
objections. They appear in an essay on AZAPO by philosopher Darrel

10
C Jenkins ‘After the dry white season: The dilemmas of reparation and
reconciliation in South Africa’ (2000) 16 South African Journal on Human Rights
415 481. Jenkins (480) elaborates: ‘The TRC process does not re-establish
equality between victim and perpetrator. It denies victims the satisfaction of a
judgement on the merits … ; it removes the victim’s right to claim damages in a
civil action; it provides victims with a very limited right to participate in the
decision as to how to deal with the offender; it requires offenders neither to
express remorse nor to apologise, nor to make amends.’
11 R Wilson ‘The myth of restorative justice: Truth, reconciliation and the ethics of
amnesty’ (2001) 17 South African Journal on Human Rights 531 535, 556, 560,
562.
12 E Kiss ‘Moral ambition within and beyond political constraints: Reflections on
restorative justice’ in Rotberg & Thompson (n 6 above) 68; D Dyzenhaus
‘Justifying the truth and reconciliation commission’ (2000) 8 The Journal of
Political Philosophy 470.
13
D Moellendorf ‘Amnesty, truth and justice: AZAPO’ (1997) 13 South African
Journal on Human Rights 283; R Wilson The politics of truth and reconciliation in
South Africa: Legitimising the post-apartheid state (2001).
14
D Moellendorf (n 13 above); K Greenawalt ‘Amnesty’s justice’ in Rotberg &
Thompson (n 6 above) 189.
15 J Dugard ‘Retrospective justice: International law and the South African model’ in
McAdams (n 6 above) 269; N Roht-Arriaza & L Gibson ‘The developing
jurisprudence on amnesty’ (1998) 20 Human Rights Quarterly 843.
152 Patrick Lenta

Moellendorf and in a book-length study of AZAPO and the TRC

generally by Richard Wilson.16 I shall enquire whether the agreement
between the National Party (NP) and the African National Congress
(ANC) in respect of amnesty, though a prudential and pragmatic
compromise, might not have been, even as an instance of realpolitik,
possessed of moral merit. I shall also ask whether justice requires
retribution or whether the concept of ‘restorative’ or ‘trans-
formative’ justice has plausibility and coherence. I shall consider
whether the charge that the Court either misunderstood or ignored
international law prescriptions dealing with the treatment of human
rights violations under international law is correct. Finally, I shall ask
whether objections to the indemnification of perpetrators and the
state against civil liability are sound and whether appropriate
reparations, were they to be paid, would go some way towards
compensating victims.

3 Amnesty and AZAPO

According to most accounts of the transitional negotiations at CODESA

between 1991 and 1993, the NP would not have permitted transition
to democracy had it not secured the offer of amnesty for its members
and agents, who would otherwise have been liable for arrest,
prosecution and imprisonment. The ANC faced the dilemma that, on
the one hand, if it did not agree to grant amnesty, negotiations would
collapse, necessitating a return to the politics of violent con-
frontation, and on the other, that agreement to blanket amnesty
might be tantamount to impunity for perpetrators with the sacrifice
of accountability and justice this could entail. In the end, agreement
between the ANC and the NP was reached during the hiatus prior to
parliament’s adoption of the Constitution.17 The ANC’s last-minute
agreement to a conditional amnesty, that is, to offer amnesty in
exchange for a truthful disclosure of violations, was recorded in the
postamble of the Constitution.18

16
Moellendorf (n 13 above); Wilson (n 13 above).
17 L Berat ‘South Africa: Negotiating change?’ in N Roht-Arriaza (ed) Impunity and
human rights in international law and practice (1995) 267; J Dugard
‘Reconciliation and justice: The South African experience’ (1998) 8 Transnational
Law and Contemporary Problems 277 291-292; P van Zyl ‘Dilemmas of transitional
justice: The case of South Africa’s Truth and Reconciliation Commission’ (1999) 52
Journal of International Affairs 647 648-650; Wilson (n 13 above) 7-8.
18 We might ask whether the ANC would have agreed to offer conditional amnesty
had its options not been constrained by the outgoing regime. J Elster (n 5 above)
196-197 provides reasons to think that the ANC would have chosen moderation
even if it had not been imposed on it. First, ‘they might have pulled their punches
for the sake of reconciliation’. Second, they may have decided to forego large-
scale prosecutions because of the practical problems associated with this option.
Third, and most important, the economic power of the white elite might have
caused the ANC to be wary of alienating the international capital market, which
is notoriously sensitive to social and political instability.
 Chapter 9 153

If, at first glance, the postamble’s justification of amnesty as the

need to promote national unity and reconciliation and to eschew
vengeance appears coherent, closer scrutiny reveals a sleight of hand.
Nowhere is retribution disqualified or even mentioned, creating the
impression that the only alternative to amnesty is vengeance and that
retribution does not even enter into the ambit of possibility. The
effect of this formulation is to provide amnesty with an undeserved
advantage over its closest rival. Indeed, the postamble’s stealthy
disqualification of retribution is so beguiling that it has tempted one
commentator into the conceptual slippage that it invites. Wilson, who
elsewhere demonstrates his awareness of the distinction between
retribution and revenge, writes, ‘the Constitution’s postscript
explicitly rejected retribution’,19 whereas the Constitution disavows
only vengeance.
In 1995, to give effect to the agreement on amnesty negotiated
between the parties, parliament enacted the Promotion of National
Unity and Reconciliation Act,20 which provided for the granting of
conditional amnesty. Amnesty would be granted to perpetrators of
gross human rights violations in exchange for full disclosure about
their crimes, provided that such crimes were politically motivated.21
The Act provided for the creation of the TRC, which it tasked with
establishing, through hearings and investigations, a complete picture
of the ‘gross violations of human rights’ committed between March
1960 (the Sharpeville Massacre) and 1993. The TRC was authorised to
grant amnesty, to restore the dignity of the victims by providing them
with an opportunity to relate their accounts of the abuses they
suffered, to recommend measures for the provision of reparation to
victims, and to prepare a report containing recommendations of
measures to prevent future violations of human rights. Amnesty
granted to perpetrators would cover civil and criminal liability for
individuals and the vicarious liability of the state in respect of their
acts.
In April 1996, the Azanian People’s Organisation (AZAPO), a
political party to the left of the ANC, together with the families of
well-known ANC activists tortured and murdered by agents of the
apartheid government — Steve Biko’s family among others — brought
an application before the Constitutional Court to set aside section
20(7) of the Act, the provision which provided for the granting of
amnesty. The applicants challenged on four grounds the

19
Wilson (n 13 above) 8.
20
Act 34 of 1995.
21 The Act specified that any person who acted for personal gain would not qualify
for amnesty, except if that person received money or anything of value for being
an informer. A person who had committed a crime motivated by malice, ill-will or
spite could not be granted amnesty. However, as Elster (n 5 above) 119-120
observes, the TRC’s interpretation of the requirement that crimes must be
‘politically motivated’ was inconsistent.
154 Patrick Lenta

constitutionality of the TRC’s authority to grant amnesty. First, they

alleged that section 20(7) of the Act was inconsistent with section 22
of the interim Constitution, which provides that every person shall
have the right to have justiciable disputes settled by a court of law
or, where appropriate, another independent or impartial forum.
Second, they argued that the state was obliged by international law
to prosecute those responsible for gross human rights violations and
that the provisions of section 20(7) constituted a breach of
international law. Third, the applicants averred that section 22 of the
interim Constitution conferred on individuals the right to pursue civil
claims for the recovery of damages caused as a result of gross
violations of human rights, with which the granting of immunity from
civil claims was inconsistent. Finally, it was contended that the
legislature’s authorisation of the indemnification of the state against
delictual acts perpetrated by its employees amounted to the state’s
facilitating its own indemnity, which, it was alleged, was un-
constitutional.
The AZAPO decision employed the rhetoric of the interim
Constitution’s postamble to justify its finding of consonance between
the amnesty provision and the Constitution.22 Following the
postamble, the Court argued that the Constitution reflects a
commitment to ‘a transition towards a just, defensible and political
order based on respect for human rights’ and that such a society
‘could not be achieved without a firm and generous commitment to
reconciliation and national unity’.23
In response to the applicants’ argument that the amnesty
provision was not authorised by the Constitution, since the right of
victims to require the prosecution and punishment of wrongdoers was
guaranteed by section 22 of the Constitution, the Court conceded that
amnesty ‘effectively obliterates’24 the right contained in section 22.
Mahomed DP, on behalf of the Court — except Didcott J who delivered
a separate judgment — disputed the applicants’ claim that the
postamble is of a lesser status than section 22, since section 22 is a
fundamental right contained in the Bill of Rights and accordingly
should outweigh the preamble. Mahomed DP argued that the
postamble ‘has no lesser status than any other part of the
Constitution’,25 referring to section 232(4) of the Constitution which
stipulates that the postamble ‘shall not by reason only of the fact that
it is contained in a schedule, have lesser status than any other
provision of this Constitution’. Accordingly, Mahomed DP argued,
section 22 should be read as though qualified by and subject to the

22 AZAPO (n 1 above) para 19.

23 AZAPO (n 1 above) para 2.
24
AZAPO (n 1 above) para 9.
25 AZAPO (n 1 above) para 14.
 Chapter 9 155

postamble, with the result that amnesty should be considered to be

mandated by the Constitution.
The Court’s construction of the two ostensibly contradictory
provisions has plausibility as an attempt to read them together as
complementary rather than contradictory. Section 22 is more general
than the amnesty provision in the postamble, so that the particular
requirement to provide amnesty for human rights violators could
qualify the general right to have justiciable disputes settled by a court
or other appropriate forum. Conversely, the requirement to provide
amnesty could not sensibly be qualified by the right in section 22. In
Mhlungu, Kriegler J held that the right to a fair trial, section 25(3) of
the Bill of Rights, overrode a provision which qualified the application
of the right on the basis that the Bill of Rights ‘deal[s] with clearly
distinct matters of fundamental constitutionalism and recognition of
rights’,26 whereas the second provision constituted ‘an obscure
subsection of a prosaic transitional provision’.27 However, in AZAPO
it is much less plausible to assert, as the applicants did, that there is
a ‘qualitative distinction’28 between section 22 and the postamble,
since the postamble, while not a fundamental right, provides for a
political arrangement of such significance as to render it anything but
prosaic.
The applicants argued that even if the Constitution authorised
amnesty, it did not authorise the form of amnesty contained in the
Act. The Court responded that the victims’ demand for retribution
was, all else being equal, justified, but that the destruction and
hiding of evidence by apartheid officials meant that there would be
little opportunity for disinterring the evidence necessary to secure a
conviction.29 On the other hand, the Court argued, amnesty would
provide perpetrators with an incentive to disclose the truth about
past injustices. The combination of perpetrators unburdening
themselves of the truth and survivors testifying to the abuses they
suffered would enable all parties concerned to begin ‘the long and
necessary process of healing the wounds of the past’ without which
culprits and victims ‘would hobble more than walk to the future with
heavy and dragged steps, delaying and impeding a rapid transition’.30
The Court also recognised the political necessity underpinning the
agreement to grant amnesty, without which ‘those threatened ...
might never have been forthcoming’.31
The Court rejected the applicants’ argument that amnesty would
contravene a duty imposed by international law by pointing to the

26 S v Mhlungu 1995 3 SA 867 (CC), (Mhlungu) para 97.

27
n 26 above, para 92.
28 As above.
29 AZAPO (n 1 above) para 17.
30
As above.
31 AZAPO (n 1 above) para 19.
156 Patrick Lenta

granting of amnesty in Chile, El Salvador and Argentina and

concluding that ‘there is no single or uniform international practice in
relation to amnesty’.32 Responding to the claim that international law
conventions, such as the Geneva Convention of 1949, require penal
sanctions for persons committing grave breaches, the Court stated
that the question was whether amnesty is consistent with the
Constitution and, if it is, whether ‘the enquiry as to whether or not
international law prescribes a different duty is irrelevant’.33 The
Court nevertheless conceded that international treaties and
customary law might be relevant to the interpretation of the
Constitution on the grounds that the framers should not lightly be
presumed to have intended to violate international law.
Mahomed DP noted that section 35(1), the interpretation clause,
which provides that, in the course of interpretation, courts shall ‘have
regard to public international law applicable to the protection of the
rights entrenched in this chapter’, does not make international law
binding on the Court. Mahomed DP nevertheless noted that, in the
case of the Geneva Conventions, ‘the content of these conventions in
any event do not assist the case of the applicants’.34 He argued that
the literature on international law distinguishes between acts of
violence in the course of war and violence perpetrated in a struggle
between armed forces of the state and dissident forces, and indicated
that there is no obligation to prosecute in the latter case since ‘the
State concerned is best equipped to determine what measures may be
most conducive for the facilitation of such a reconciliation and
reconstruction’.35
The Court also rejected the claim that since the amnesty provision
contained in the postamble makes no reference to civil indemnity,
section 20(7) was unconstitutional by reason of the fact that amnesty
should not shield wrongdoers from delictual claims unless the
Constitution explicitly authorises this. Mahomed DP reasoned that the
word ‘amnesty’ was wide enough to include immunity from civil
claims. He applied the justification for criminal amnesty to civil
immunity as well; civil amnesty is required to motivate perpetrators
to tell the truth, which ‘will not be effectively revealed by the
wrongdoers if they are to be prosecuted for such acts’.36
The final challenge advanced the claim that it was invalid for the
state to indemnify itself against civil claims, and that it should be
forced to compensate victims for losses suffered as a result of
criminal acts of its employees. The Court justified indemnifying the
state against civil claims on the grounds that allowing claims for

32
AZAPO (n 1 above) para 24.
33 AZAPO (n 1 above) para 26.
34 AZAPO (n 1 above) paras 27& 28.
35
AZAPO (n 1 above) para 31.
36 AZAPO (n 1 above) para 36.
 Chapter 9 157

damages against the state would have the effect of preferring one
class of apartheid victim over other victims who had suffered
different, but no less grave, kinds of abuse during apartheid, but who
did not have a legally enforceable claim against the state because, for
example, their claims had prescribed.37 According to Mahomed DP:
The resources of the state have to be deployed in ... a manner which best
brings relief and hope to the widest sections of the community,
developing for the benefit of the entire nation the latent human
potential and resources of every person who has directly or indirectly
been burdened with the heritage of the shame and the pain of our racist
past.38
Allowing delictual claims against the state, the Court argued, would
divert funds desperately required in the areas of education, housing
and primary health care, constituting an ‘irrational differentiation’
between classes of legitimate claimants against the state’s resources.
According to the Court, parliament’s decision to invest the TRC with
the authority to make recommendations concerning reparations,
envisaged by the postamble’s reference to ‘a need for reparation’,
conceives of compensation as a complex calculation based on the
particular needs of individual claimants in the light of their current
circumstances, an assessment of which falls more properly within the
purview of government, as arbiters of policy, than that of the courts.
In his judgment, Didcott J, despite concurring with Mahomed DP’s
reasoning on the issue of criminal and civil amnesty for perpetrators,
provided an alternative justification for the constitutionality of the
Act’s foreclosing on the possibility of civil claims against the state.
Against Mahomed DP’s justification, he held that ‘the lack of a right
by the many can scarcely provide a sound excuse for its denial to
others, be they relatively few, whose title to it is clear’.39 In addition,
Didcott J argued that amnesty for the state could not be justified by
referring to the compromise agreement between the ANC and the NP
since it is unlikely that the compromise contemplated amnesty for the
state.40 He nevertheless agreed that indemnifying the state against
civil claims was constitutional on the basis that the goals of national
unity, reconciliation and societal reconstruction proclaimed by the
postamble require closure on the injustices of the past.41 In Didcott
J’s reckoning, such closure would not be achieved if protracted
litigation was permitted. Besides, he reasoned, the Act contemplates

37
According to Van Zyl (n 17 above) 660, ‘since civil claims in South Africa are
subject to a two-year statute of limitations, the vast majority of victims are
presently unable to pursue such claims. In addition, most victims who furnished
the TRC with information are poor, and could not have afforded the services of an
attorney or advocate. In summary, civil trials offer only a small percentage of
victims of human rights abuse a reasonable prospect of obtaining redress.’
38 AZAPO (n 1 above) para 43.
39 AZAPO (n 1 above) para 55.
40
AZAPO (n 1 above) para 58.
41 AZAPO (n 1 above) para 59.
158 Patrick Lenta

the payment of reparations by the state to victims. The state is

therefore not absolved from its responsibility to compensate
victims.42

4 Moellendorf and Wilson’s objections to AZAPO

Both Moellendorf and Wilson criticise the Court’s reasoning on the

basis that it attributed moral force to what was in effect a
compromise reached in furtherance of political objectives that were
pragmatic rather than moral. Both argue that, as a result, justice was
sacrificed for truth, reconciliation and nation building. In what
follows, I argue that Moellendorf and Wilson are, all things
considered, mistaken.
Moellendorf exemplifies Walzer’s contention that philosophers
‘have little taste for bargaining and mutual accommodation’.43 He is
sceptical about the moral status of the compromise reached in
respect of amnesty, believing that since the compromise involves a
capitulation to the demands of an unjust regime, it hangs somewhere
between moral abdication and craven betrayal of the ideals in the
name of which the struggle against apartheid was waged. The Court
held that the amnesty compromise was justified because, even
though it violated the constitutionally entrenched right to have
justiciable disputes settled in a court of law, it was necessary to
secure another, more important, moral good, the transition to a
democratic society, which might never have taken place had the
amnesty agreement not been reached. Moellendorf questions the
empirical claim that ‘but for the mechanism of amnesty’ the
transition to a liberal democracy ‘might not’ have occurred and that
the agreement of those threatened ‘might never have been
forthcoming’.44 Moellendorf objects that the modal status of ‘might
not’ is too weak and that Mahomed DP ‘needs rather to claim that it
is likely that without amnesty the transition would not have been
effected’.45
As it happens, Mahomed DP exceeds even Moellendorf’s
requirements when he writes, later in the judgment: ‘[T]he
Constitution itself could not have successfully been transacted if
those responsible for the negotiations which preceded it were going
to remain vulnerable to potentially massive claims.’46 The vast
majority of accounts of the amnesty negotiations concur that in the
absence of agreement on amnesty, negotiations would have faltered,

42
AZAPO (n 1 above) para 65.
43 M Walzer ‘Philosophy and democracy’ (1981) 9 Political Theory 379 381.
44 AZAPO (n 1 above) para 19.
45
Moellendorf (n 13 above) 288.
46 AZAPO (n 1 above) para 49.
 Chapter 9 159

with the likely result that the violent struggle would have continued,
and more lives would have been lost. According to Paul van Zyl, the
former government and its security forces ‘never would have allowed
the transition to a democratic order’ without having secured
amnesty. Van Zyl records in support of this claim that a few months
prior to the elections officers in the security forces threatened to
withdraw their support for the process unless amnesty was secured.47
Dugard similarly suggests that ‘political factors made such a choice
impossible’.48 For Lodge, agreement on amnesty was an ‘indis-
pensable condition’ for peaceful transition.49
Moellendorf quotes a commentator on the Latin American
transitional experience to the effect that the judicial treatment of
human rights violations does not endanger democratic transitions. On
the strength of this assessment, he suggests that if judicial treatment
of human rights violations was prejudicial in the South African
context, Mahomed DP needs to explain why this should be so. Again,
Mahomed DP provides the explanation that Moellendorf calls for:
Continued insistence on prosecution of perpetrators by the ANC would
in all likelihood have derailed or at least delayed, in perpetuation of
the injustices of apartheid and with the likely consequence of
increased bloodshed and further human rights violations, the
transition to democracy.50 In certain countries in Latin America, such
as those to which Moellendorf refers, the balance of power made
prosecution a feasible alternative, but this was not the case in South
Africa.
If amnesty was necessary to end the injustice of apartheid, then
the amnesty compromise has a moral value independent of the
benefits or disadvantages of granting amnesty as a form of dispute
resolution, because the moral advantage that accrues in ending
apartheid sooner rather than later outweighs or at least rivals the
moral disadvantage of violating the right to have disputes settled by
adjudication. Moellendorf downplays the significance of the forces
that impelled the political decision to include amnesty in order to

47 Van Zyl (n 17 above); A Boraine ‘Truth and reconciliation in South Africa: The
third way’ in Rotberg &Thompson (n 6 above) 141 143.
48
Dugard (n 15 above) 276. Richard Goldstone, a judge on the South African
Constitutional Court though not presiding in AZAPO, declared: ‘The decision to
opt for a Truth and Reconciliation Commission was an important compromise. If
the ANC had insisted on Nuremberg style trials for the leaders of the former
apartheid government, there would have been no peaceful transition to
democracy, and if the former government had insisted on a blanket amnesty then,
similarly, the negotiations would have broken down. A bloody revolution sooner
rather than later would have been inevitable. The Truth and Reconciliation
Commission is therefore a bridge from the old to the new’ (R Goldstone ‘Justice
as a tool for peace-making: Truth Commissions and the International Criminal
Tribunal’, unpublished Hauser Lecture, New York University, 22 January 1997).
49
T Lodge Politics in South Africa: From Mandela to Mbeki (2002) 176.
50 AZAPO (n 1 above) paras 17-19.
160 Patrick Lenta

shore up his central claim that perpetrators of human rights violations

should have been prosecuted and that amnesty is unjust.
Although he (wrongly) denies the conditional — but for amnesty,
transition would not have taken place — Moellendorf does grant the
moral claim that the value of achieving a liberal democratic society
outweighs the violation of a fundamental human right. He is right to
do so. Without the establishment of a liberal democratic society there
would be no rights to protect in the first place and no possibility of
enforcing them. Once the truth of the conditional is conceded,
amnesty is justified on the basis of its instrumental value for rights
and democracy.
Moellendorf proceeds to consider a second justification advanced
by the Court: that amnesty is necessary for truth, which is, in turn,
necessary for reconciliation and national unity. Moellendorf’s
objection to this defence of amnesty is that, as fundamental human
rights, constitutional principles such as the right to have justiciable
disputes settled in a court or other appropriate legal forums cannot
morally be compromised unless the compromise is necessary to meet
the background conditions of justice — democracy and rights — since
this would involve a policy trumping a right. Moellendorf, in other
words, is not prepared to accept the argument that by facilitating
truth, amnesty provides a form of justice, that amnesty is a principled
compromise. The justification that amnesty is an incentive for truth,
Moellendorf argues, must be consequentialist: Amnesty is necessary
for truth, which is, in turn, necessary ‘because of the great goods of
well-being which it yields’.51 Contrasting the value of truth which
amnesty produces with the value of truth in a criminal trial,
Moellendorf writes:
In such cases the truth is instrumentally valuable because of its service
to justice. In the case at hand the measures used to arrive at the truth
make serving justice impossible.52
Moellendorf enlists Dworkin in support of his claim that the granting
of amnesty to procure truth cannot be just, because to do so violates
a fundamental human right:
A strong right is one that cannot be weighed against the policy goal of
achieving the well-being of those affected. Instead such a right limits
how such social goals may be achieved.53
Before taking up, in the next section, the question of the kind of
justice that amnesty promotes, I shall consider Moellendorf’s claim
that it is unjust to override rights on the basis of the positive
consequences that such a violation produces. It is true that in the

51 Moellendorf (n 13 above) 287.

52
As above.
53 As above.
 Chapter 9 161

discourse of moral philosophy inclusion of a Bill of Rights in a

constitution is an attempt to provide reasonable deontological
restrictions on the pursuit of social utility. In general, it is wrong in
principle to pursue even laudable social goals in violation of the rights
of individuals. Moellendorf provides an example: the testing of AIDS
cures on people without their informed consent. Such experimen-
tation is wrong because the right to information outweighs whatever
beneficial consequences may accrue from violating the right. The
same goes for killing an individual and distributing his organs to save
ten others who might otherwise die. Catering for the greatest good of
the greatest number in such cases generally requires that one or a
group of persons be sacrificed to save other persons. Rights theorists
attempt to prevent this inference by insisting, as Moellendorf does,
that each individual has inviolable rights that trump considerations of
social utility.
My reply to Moellendorf distinguishes between two questions:
First, how is the right in question defined? And second, what sort of
priority does the right have over other goals and values? On the first
question, in its interpretation of the Constitution, the Court was
forced to resolve an apparent inconsistency between the right to have
justiciable disputes settled in a court or another legal forum and the
commitment to granting amnesty in the postamble. Assuming the
drafters intended both the right and the postamble to be enforceable,
then — as I have already argued — the generality of the right may be
qualified by the particular commitment to offer amnesty to
wrongdoers, whereas the amnesty provision cannot be qualified by
the right in the same way. If amnesty is held to qualify the right, then
the right is ‘obliterated’ only in the context of the TRC’s offer of
amnesty; it is still enforceable, depending on how it is interpreted, in
other contexts. However, if the right is held to override the amnesty
provision, the amnesty provision is completely unenforceable, and, as
such, superfluous. It does not survive as an enforceable commitment
in other contexts because the commitment is applicable to only one
context — the offering of amnesty to perpetrators of human rights
violations in order to facilitate reconciliation. By interpreting the
right as subject to the amnesty commitment, the Court preserved the
enforceability of both the right and the postamble in a way that may
reasonably be construed as consistent with the drafters’ intentions.
On the question of the priority of rights over other values and
goals, even if it is true that most rights theorists deny that rights may
be overridden in every case where doing so would facilitate an overall
gain in wellbeing, it is also fair to say that there are very few who
believe that rights should be utterly impervious to very large social
costs. In particular, it is not clear that the argument that amnesty is
necessary for truth, which is itself necessary for reconciliation, must
be consequentialist, as Moellendorf claims. It does not follow, in
other words, that overriding a right in order to avoid the morally bad
162 Patrick Lenta

consequences that would follow from enforcing the right is always

morally impermissible from a deontological viewpoint. The choice is
not simply between absolute deontology and consequentialism. It is
possible to adopt a moderate deontology without falling into
consequentialism. A non-absolute deontologist asserts that we have a
duty to uphold rights, but this duty may be overridden if the
consequences of conforming to it are excessively bad. As the
consequences of conforming to the deontological constraint become
worse and worse, at some point a threshold of badness is reached. At
this point it is permissible to violate the right. Now, I take it that the
Court’s argument in favour of amnesty is not simply that amnesty
facilitates truth which is necessary for reconciliation, but also that
reconciliation is necessary for the consolidation of democracy in
South Africa and that the consolidation of constitutional democracy is
an element of, or background condition for, justice, in part because
it includes a justiciable Bill of Rights. If it is true that reconciliation is
necessary for democracy, then, provided it can be shown, contrary to
Moellendorf, that truth is productive of reconciliation, Moellendorf’s
own account should lead him to support amnesty since, as he rightly
concedes, rights are not absolute and ‘might be outweighed by other
rights claims or if the background conditions of justice cannot be
achieved without doing so’.54
It is my contention that reconciliation is necessary for the
consolidation of democracy. Without national unity and reconciliation
— without the restoration of trust and empathy — democracy cannot
thrive, as Tom Lodge points out in his commentary on post-apartheid
South Africa:
Democracies are unlikely to consolidate when citizens’ trust in the
government decreases or if citizens themselves are mutually distrustful
of each other or divided by communal antagonisms. In a democratic
society in which citizens trust and feel empathy for each other and in
which they view government as legitimate ... democracy has then
become entrenched or consolidated.55
It is difficult to see how formerly oppressed blacks, prior to their
grievances being acknowledged or addressed, could feel empathy for
their former oppressors and equally implausible to think that whites
would, without prompting and assistance, be able to overcome their
guilt and fear of revenge in order to transcend the racial polarities
generated by apartheid.
Importantly, the argument that the relevant right may be
overridden to secure reconciliation is not consequentialist, because it
does not deny that the right is a deontological duty that we should
refrain from violating. It only asserts that this duty may be overridden

54
Moellendorf (n 13 above) 297.
55 Lodge (n 49 above) 154.
 Chapter 9 163

in order to prevent some very large evil. If it is true that some degree
of reconciliation is necessary for democracy, then the right to have
justiciable disputes settled in a legal forum may be violated, because
the consequence of enforcing the right, the failure of democratic
consolidation, has met the relevant threshold of badness.
Even if Moellendorf is right that the justification for amnesty must
be consequentialist, his insistence that rights can never be overridden
by reference to consequences does not square with the practice of
rights adjudication in South Africa. Two examples will suffice. In the
death penalty — Makwanyane — decision, the Court considered the
argument for deterrence and rejected it on the grounds that there
was insufficient evidence to conclude that the death penalty acted as
a deterrent to crime. It did not reject the deterrence argument
because it is a consequentialist justification for the death penalty.
Secondly, section 37 of the final Constitution provides for the
derogation from rights in times of emergency — war, riots and
insurrection. These seem to be cases in which social utility is thought
to outweigh legal rights.56 The absolutism of Moellendorf’s claim for
the enforcement of the section 22 right is well met by Jonathan
Allen’s claim that ‘so strong an anti-consequentialism is bound to
wreak havoc in politics’.57
Moellendorf’s argument presupposes more than his claim about
the inviolability of rights. It assumes — or is at least consistent with
the argument — that justice requires retribution for the guilty, come
what may. It implicitly sides with Kant, whose deontology seems to
ground Moellendorf’s position throughout:
The principle of punishment is a categorical imperative, and woe to him
who crawls through the windings of eudaemonism in order to discover
something that releases the criminal from punishment or even reduces
its amount by the advantage it promises ... Even if a civil society were to
be dissolved itself by the consent of all its members ... the last murderer
remaining in prison would first have to be executed, so that each has
done to him what his deeds deserve and blood guilt does not cling to the
people for not having insisted upon this punishment; for otherwise the
people can be regarded as collaborators in this public violation of
justice.58
For Kant, punishment is justified by backward-looking considerations.
The criminal, having engaged in wrongful conduct in the past,
deserves his punishment and it would be unjust for him not to receive
it.

56
R Geuss History and illusion in politics (2001) 148.
57 J Allen ‘Balancing justice and social unity: Political theory and the idea of a truth
and reconciliation commission’ (1999) 49 University of Toronto Law Journal 315
316.
58 I Kant The metaphysics of morals trans MJ Gregor (1996 [1797]) 141-142.
164 Patrick Lenta

Kant’s theory of punishment is simply too absolute. Kant justifies

punishment in terms of reciprocity: In order to enjoy the benefits
offered by the legal system, everyone must make sacrifices, including
obeying the law when he has an interest in breaking it. When the
criminal breaks the law he can have no objection to being punished
because he has rationally willed or consented to his own punishment.
The weakness of the Kantian account is that it collapses the
distinction between having a good reason for doing X and having a
sufficient reason for doing X.59 The Kantian account arguably provides
a good reason for punishing the guilty — retribution, that is, paying
the debt to society — but it does not provide a sufficient reason for
punishment when the consequences of punishment, for example
preventing reconciliation, reach a threshold of moral unacceptability,
for example obstructing the consolidation of democracy. Where the
threshold is met, moderate deontologists should accept that the
principle of retribution may permissibly be violated.
Although Moellendorf does not provide a defence of unqualified
retribution, Wilson provides an argument for the justice of retribution
and the corresponding injustice of amnesty, though it is grounded less
on the desert of perpetrators than on popular sentiment. He agrees
with Moellendorf that the Court’s sanctioning of amnesty constitutes
an injustice and, like Moellendorf, argues that the right to have the
guilty punished should have been upheld: ‘[I]t is misguided to
delegitimise human rights at the national level by detaching them
from a retributive understanding of justice.’60 Wilson argues that the
abandonment of retribution turns human rights into a ‘language ... of
compromise and ... phony reconciliation’.61 He suggests that the TRC
was preferred to retribution because of its ability to aid nation
building, the manufacture of consensus that enables the consolidation
of a new form of bureaucratic governance in South Africa. Nationalism
is the means by which to mobilise the masses to identify with the state
and to legitimate its apparatus of justice, the legal system, ‘which
still remains tainted by the authoritarian past’.62
Wilson concedes that the TRC ‘was probably the best opportunity
for the majority of ordinary survivors and their families to learn
more’63 about the abuses of the past, but insists that the democratic
imperative to govern in accordance with the will of the people is
supervening. With reference to opinion polls and drawing on his
ethnographic research in townships, Wilson argues that the majority

59
JG Murphy Retribution, justice and therapy (1979) 87.
60 Wilson (n 13 above) 230.
61 Wilson (n 13 above) 12.
62
Wilson (n 13 above) 17.
63 Wilson (n 13 above) 23.
 Chapter 9 165

of South Africans favoured retribution over amnesty — the people’s

concept of justice is retributive.64 Accordingly, the Constitutional
Court should have interpreted the Constitution in accordance with the
popular conception of justice which favours retribution. Criminal
trials, Wilson suggests, would not only have fortified the rule of law,
but would also have ‘linked human rights to popular understandings
of justice’ in a salutary fashion.65 Also, Wilson sees no inconsistency
between retribution and reconciliation; indeed, he regards
retribution as the only road to true reconciliation.
Leaving aside Wilson’s claim that the Court should uncritically
have followed popular opinion, a claim that misunderstands the
Court’s function in a constitutional democracy — would he have
preferred the Court to have retained the death penalty on the
strength of the support of public opinion for it? He does not say. The
question is whether Moellendorf and Wilson are right to insist that
justice requires retribution or whether amnesty and the TRC can be
said to further justice. In the next section I consider arguments
offered by supporters of the Court’s decision, among whom I include
myself, which assert that the Court did not sacrifice justice, but
enabled a concept of justice variously called ‘restorative justice’ and
‘transformative justice’.66

5 Justifying amnesty and the TRC

A distinction should be drawn between two kinds of justification for

amnesty and the TRC. On the realist justification, the government
was forced by the political, though not necessarily moral, demands of
the outgoing regime to agree to amnesty in order to ensure the birth
of a democratic, rights-based society. The ANC was justified in
agreeing to this compromise because failure to agree would have
jeopardised the transition. This justification is often regarded by
defenders of truth commissions as insufficient on its own. Most seek
to supplement it with a second justification, according to which
conditional amnesty facilitates justice as a means of conflict
resolution. What must be shown is precisely what Moellendorf insists
should be, but he claims is not the case — that the compromise
reached was a principled compromise. As Amy Gutmann and Dennis
Thompson argue:
[T]he families of Biko and Mxenge ... along with all victims of apartheid,
present strong arguments in favour of pursuing justice against those who

64
Wilson (n 13 above) 25.
65 Wilson (n 13 above) 27.
66 Minow (n 6 above); Allen (n 57 above); Kiss (n 12 above); Dyzenhaus (n 12 above);
D Dyzenhaus ‘Transitional justice’ (2003) 1 International Journal of
Constitutional Law 163.
166 Patrick Lenta

committed crimes under apartheid. Their arguments deserve a moral

response, one that is more specific than the hope of building a better
democracy. Even if some kind of amnesty were necessary to bring
constitutional negotiations to a successful conclusion, this political
compromise must be shown to be a moral compromise. Otherwise, the
new democracy will be morally flawed from its inception.67
Defenders of the TRC who claim that the TRC fosters justice generally
occupy one of two positions falling under the rubric of restorative
justice, one more ambitious than the other. The first, stronger,
version of restorative justice uncouples the pursuit of justice from the
retributive view of punishment and argues that the rejection of
retribution resulted in no sacrifice at all, but rather in a superior form
of justice. Robert Llewellyn and Jennifer Howse assert that the TRC
embodies restorative justice, a form of criminal justice advocated by
certain criminologists in respect of the criminal justice system
generally.68 Champions of restorative justice oppose punishment for
all criminal offenders and propose instead that those parties who have
a part or a stake in an offence come together to resolve collectively
the way in which to deal with the aftermath of the offence and its
implications for the future. According to these proponents of
restorative justice, the proper aim of the criminal justice system is
the restoration of the social equilibrium disrupted by the offence, by
restoring equality between the victim and perpetrator. Proponents of
restorative justice stress reintegrative measures that restore social
bonds, and object to imprisonment on the basis that it serves to
separate perpetrators from society, and is therefore divisive. The
TRC, Llewellyn and Howse aver, facilitates restorative justice by
integrating perpetrators back into society rather than punishing
them.
There is support for this ‘restorative justice’ model of the TRC in
the AZAPO judgment. As Mahomed DP explains, not only are those
‘unlawfully tortured, maimed or traumatised more empowered to
discover the truth, the perpetrators become more exposed to
opportunities to obtain relief from the burden of a guilt’ so that they
are not ‘inhibited in their capacity to become active, full and creative
members of the new order’.69 The notion of restorative justice has
considerable plausibility as a model with which to explain many of the
ambitions of the TRC: The building of a more just and tolerant
society; the restoration of community; addressing the needs of
victims rather than simply convicting and punishing wrongdoers and
facilitating reconciliation are all integral to the aims of the TRC and

67 A Gutmann & D Thompson ‘The moral foundations of truth commissions’ in

Rotberg & Thompson (n 6 above) 22 28.
68 JJ Llewellyn & R Howse ‘Institutions for restorative justice: The South African
Truth and Reconciliation Commission’ (1999) 49 University of Toronto Law Journal
355.
69 AZAPO (n 1 above) para 17-18.
 Chapter 9 167

the Court’s justification of it. The TRC’s final report argues that it
promoted restorative justice which, it explains, is concerned not so
much with punishment as with correcting imbalances and restoring
broken relationships — with engendering healing, harmony and
reconciliation.70
For Llewellyn and Howse, these features render the TRC not a
sacrifice of justice, but a model of justice. However, this more
ambitious version of restorative justice has a serious weakness. It
requires victims to forego as illegitimate their claims to retribution,
even though retribution and punishment are in other circumstances
features of existing criminal law. It also requires that victims be
reconciled with the perpetrators even though the wrongdoers may
have refused to apologise, so that an apparent injustice may result in
so far as reconciliation may be forced and punishment absent, a
complaint which victims voiced against the TRC.
A second, weaker, version of restorative justice, which Dyzenhaus
terms ‘transformative justice’71 so as to distinguish it from the
version of restorative justice favoured by Llewellyn and Howse,
acknowledges that ‘victims ... make elemental claims for retributive
justice’72 and that such claims are legitimate and on a sound moral
footing.73 Dyzenhaus follows Allen in arguing that the abrogation of
retribution in favour of amnesty and the TRC should reflect a
‘principled compromise’ between justice and social unity, such that
‘elements of both values that can be reconciled or that need not be
in conflict are given emphasis’.74
Allen’s insight is that a cost is paid when retribution is rejected
and such a sacrifice can only be justified if the goods it secures accord
with another concept of justice, a possibility that strict accounts of
retribution do not envisage. Allen, Kiss and Dyzenhaus’s brand of
restorative justice agrees with Llewellyn and Howse’s version that
part of justifying amnesty and the TRC involves illustrating the
benefits of the TRC over criminal trials, but also seeks to show that
the TRC facilitates some of the goals traditionally associated with
retribution.
Kiss, a proponent of this more modest version of restorative
justice, identifies three commitments shared by restorative and
retributive justice:

70
Truth and Reconciliation Commission of South Africa Report (1998) vol 1 ch 5
para 70. But compare Jenkins (n 10 above) 478-479, who argues that this idea of
restorative justice does not describe the amnesty process of the TRC. Jenkins
objects that the consent of the victim is not required for the perpetrator to be
offered amnesty — the decision to apply for amnesty is wholly at the discretion of
the perpetrator.
71 Dyzenhaus (n 12 above); Dyzenhaus (n 66 above).
72 M Walzer ‘Judgement days’ New Republic 15 December 1997 13.
73
Kiss (n 12 above) 71.
74 Allen (n 57 above) 338.
168 Patrick Lenta

(1)to affirm and restore the dignity of those whose human rights have
been violated;
(2) to hold perpetrators accountable, emphasising the harm that they
have done to individual human beings; and
(3) to create social conditions in which human rights will be respected.75
The TRC, like criminal trials, attempted to provide accountability
since, in contrast to the processes of other truth commissions,
amnesty was granted on an individual rather than collective basis and
perpetrators were required to disclose publicly accounts of the abuses
in which they had participated. Moreover, rather than facilitating
impunity for wrongdoers, the amnesty process forced applicants to
admit responsibility for their acts and, as a result, experience public
shaming and opprobrium before the entire community. Shaming
represents the expressive function of punishment and so constitutes a
weak form of retribution.76 Those who failed to apply for amnesty, or
to whom amnesty was refused, could still face prosecution. When
those lower down the apartheid chain of command confessed, they
sought to explain their actions in part by naming those who had given
them the orders, including those who may have failed to apply for
amnesty.
The TRC achieved goals not traditionally thought achievable
within the context of a trial. It provided a platform from which victims
could speak in their own terms and have their suffering respectfully
acknowledged, their agency restored and their dignity affirmed.
Trials generally lack the narrative scope of truth commissions, since
in trials truth is instrumental to facilitating convictions, and is
restricted to this purpose, whereas the TRC had the ability to provide
a more complete picture of human rights violations and their
causes.77 Also, trials are prosecutor centred rather than victim
centred. In trials, prosecution witnesses undergo constant
interruption and aggressive cross-examination that is intended to
discredit their version of events. In the TRC victim hearings, victims
were listened to respectfully, without aggressive interruption.
Allen usefully distinguishes between two forms of justice
propelled by the TRC: justice as recognition and justice as ethos.
Justice as recognition relates to a shift in perception that the TRC
catalyses. The TRC advances two basic forms of recognition. The first
is a democratic form, directed towards others in regard to their
sameness with oneself as equal citizens of a shared polity. Equal

75
Kiss (n 12 above) 79.
76 Kiss (n 12 above) 77; Allen (n 57 above).
77
The TRC conducted institutional hearings into, among other things, the legal
profession and its complicity with apartheid (D Dyzenhaus Truth, reconciliation
and the apartheid legal order (1998)). Although these hearings are not generally
regarded as a great success, they did enable the TRC to investigate some of the
systemic causes of apartheid.
 Chapter 9 169

dignity between former victims and perpetrators alike is fostered by

allowing both groups to tell their stories in public. The regarding of
others as equal to oneself, as possessed of the human requisites for
participation, is characteristic of the moral culture of a democratic
society.
The second form of recognition relates to the dignity of
wrongdoers not in relation to their equality, but in their distinctness
as individuals or groups. As Fanon observes, one of the ways in which
colonial powers entrenched their hegemony was by working to
inculcate an image of inferiority in subjugated natives. The resultant
identities of indigenes were often fragmented and split, characterised
either by outwardly focused aggression or inwardly directed self-
hatred.78 Fanon’s account of the negative construction of black
subjectivity may be too simple: South Africa’s vast literary heritage
testifies to resistant, counter-constructions of self by blacks.79
Nevertheless, apartheid’s damage to the self-esteem of people of
colour was deep and widespread. In the TRC hearings, through the
public telling and reception of victims’ narratives, previously
denigrated individual and group identities were revalorised. Victims
of human rights abuses related their life stories, formerly ignored by
apartheid officials, and in doing so affirmed their dignity as
individuals and members of the cultural group to which they belong.
The narratives provided by victims in TRC hearings can be understood
as transgressing the internalised and psychologically disfiguring
narratives of colonialism in a new way.
Recognition enables respect for the victim as a person. By giving
victims the opportunity to tell their stories, they are accorded equal
moral worth and standing in the moral community, which entitles
each individual to respect from all, and entails living in the light of an
understanding of oneself as an equal person among persons. As Minow
observes: ‘Recognising the indignity of the abuses ... is vital in
communicating to the victimised, and to the rest of the nation, that
individuals do matter.’80 The workings of the TRC demonstrate that

78
F Fanon The wretched of the earth trans C Farrington (1965).
79
S Plaatje, in his novel Mhudi, published in 1930 but probably written about 1917,
was the first black writer to consider in fiction the evolution of a modern South
African black identity. The first in a line of black autobiographies was E
Mphahlele’s Down second avenue (1959). Black female autobiographers have
included N Jabavu, whose The ochre people (1963) commemorates not only her
own life but the destruction of the Xhosa intellectual group of which her family
had been distinguished members. Among other ‘writers-back’ to the white
tradition have been E Kuzwayo (Call me woman (1985)) and E Mashinini (Strikes
have followed me all my life (1989)).
80 Minow (n 6 above) 71.
170 Patrick Lenta

dignity can be restored and justice effected through means other than
punishment.81
A second form of justice embodied in the TRC, according to Allen,
is ‘justice as ethos’. The TRC has the capacity to disseminate
information about the moral evils of apartheid and the injustice of its
legal system and other institutions and as such to promote moral
deliberation and civic education. The TRC has provided a form of
justice by educating the South African political culture and helping to
restore sensitivity to injustice. Moreover, by drawing attention to the
distortions of the apartheid legal order and to officially sanctioned
transgressions of the law, the TRC has promoted the idea of justice
contained in the rule of law. Proponents of retribution charge that the
TRC constituted a departure from the rule of law and thus undermined
the rule of law in the new nation, whereas in fact the shocking
narratives told in the hearings of the TRC underscore the need for a
public commitment to the rule of law.
It is useful to draw a distinction between knowledge and
acknowledgment, first drawn by Thomas Nagel.82 That is, although
the public may have a considerable amount of knowledge about the
abuses that took place during apartheid, such knowledge is not the
same as an official public acknowledgment of what happened to
victims and their relatives. Such an acknowledgment, provided by the
TRC, loosens the grip of perpetrators on their victims, and facilitates
the restoration of the dignity of victims as well as providing the
foundations for a new moral order.
Healing may not be required by the concept of justice, but one
may nevertheless assign it a role in restorative justice.83 By allowing
victims to tell their stories in public, the TRC provided for the
possibility of healing for the victim, as well as the restoration of his
equality, dignity and agency. Commenting on healing after violence
and the need to reconstruct the self that has been damaged or defiled
by the violator, Roberta Culbertson argues:
To return fully to the self as socially defined, to establish again a
relationship with the world, the survivor must tell what happened. This
is the function of narrative ... In doing so it becomes possible to return
the self to its legitimate social status as something separate, something
that tells, that recounts its own biography, undoing the grasp of the

81
As novelist A Krog Country of my skull (1998) 16 writes in her account of the TRC
hearings: ‘If [the TRC] sees truth as the widest possible compilation of people’s
perceptions, stories, myths and experiences, it will have chosen to restore
memory and foster a new humanity and perhaps that is justice in its deepest
sense.’
82 T Nagel The justice and society program of the Aspen Institute, state crimes:
Punishment or pardon (1988) 93, cited in Osiel (n 9 above) 134.
83 J Baker ‘Truth commissions’ (2001) 51 University of Toronto Law Journal 315 316.
 Chapter 9 171

perpetrator and re-establishing the social dimension of the self lost in

the midst of violation.84
Of course, as Gutmann and Thompson report, testifying does not
always produce psychological healing, and in some cases ‘testifying
reopened old wounds, produced continuing psychological stress, and
generated hostility toward the new government and the TRC itself’.85
Even so, in some cases healing was promoted by the TRC. One victim
related that testifying before the TRC about being tortured:
has taken it off my heart ... When I have told stories of my life before,
afterward, I am crying, crying, and felt it was not finished ... I still have
some sort of crying but also joy inside.86
If the TRC was partly successful in healing individuals, did this healing
facilitate reconciliation? If reconciliation is seen as the repair of
personal relations between former oppressors and victims, as
forgiveness and atonement, the TRC was only partially successful. In
some cases victims forgave perpetrators. Albie Sachs recounts how he
felt able to extend his remaining hand to the agent of the apartheid
security services who had placed a bomb in his car, which resulted in
his losing an arm, only after the man had testified before the TRC.87
In many other cases victims refused to forgive those who had
trespassed against them. Yet it is not clear that the refusal of victims
to forgive should be viewed as a failure of the TRC. Gutmann and
Thompson indicate that reconciliation should not be understood as
requiring forgiveness on the part of victims and that
[i]f ‘the healing of the nation’ is taken to mean forgiveness by victims
and repentance by perpetrators of apartheid crimes, it is a utopian aim
and not even a positive one.88
To demand forgiveness from victims ‘may be yet another form of
degradation and a denial of their very being’,89 particularly since
amnesty applicants were not required to express contrition to obtain
amnesty.

84
R Culbertson ‘Embodied memory, transcendence, and telling: Recounting trauma,
re-establishing the self’ (1995) 26 New Literary History 169 179.
85
Gutmann & Thompson (n 67) 30. One victim who gave oral testimony denied that
testifying had been therapeutically beneficial for him. See Y Henry ‘Where
healing begins’ in C Villa-Vicencio & W Verwoerd (eds) Looking back, reaching
forward: Reflections on the Truth and Reconciliation Commission of South Africa
(2000) 166. In his view, the TRC ‘trivialised the lived experience of oppression and
exploitation’ and ‘too often played down the full extent of human suffering’.
Dugard (n 15 above) 287 denies the healing potential of the TRC altogether: ‘The
exposure of the sufferings of bygone years in public hearings before a
sympathetic commission … will not heal the mental wounds of the millions whose
dignity was denied for over forty years.’ Dugard is simply too absolutist about
this; the TRC did have the potential to heal and did in fact have a healing effect
for some, though, of course, by no means all of the victims.
86
T Rosenberg ‘A reporter at large: Recovering from apartheid’ New Yorker 18
November 1996 92, quoted in Minow (n 6 above) 243.
87 A Sachs The free diary of Albie Sachs (2004) 28.
88
Gutmann & Thompson (n 67 above) 32.
89 Minow (n 6 above) 20.
172 Patrick Lenta

It is difficult to evaluate the success or failure of the TRC’s efforts

to promote social and political reconciliation at a national level. In all
likelihood reconciliation is too complex a process to be accomplished
by the TRC alone and it is probably too early to tell whether
reconciliation as the restoration of trust and empathy between
former adversaries has begun to occur. However, if we adopt the less
stringent test for reconciliation as the restoration of peaceful
coexistence and democratic solidarity at a national level, then the
TRC may be viewed as more successful in securing reconciliation.
Supporters of the TRC rightly emphasise its contribution to
democracy.90 Formal equality, dignity and the restoration of moral
agency and autonomy are essential preconditions for a transition to a
healthy democracy. Indeed, the concept of individuality presupposed
by the attribution of rights is that of the morally autonomous rights-
bearer who has the confidence and capacity to make reflective
decisions. The TRC’s contribution to the restoration of equality,
dignity and moral agency enables citizens to participate more fully in
political decision making.
There is a further argument in support of the concept of
restorative justice underpinning the TRC which resonates with the
need to restore not only denigrated identities, but also damaged or
marginalised traditions. Desmond Tutu defends the granting of
amnesty and the TRC by arguing that
[r]etributive justice is largely Western. The African understanding is far
more restorative — not so much to punish as to redress or restore a
balance that has been knocked askew. The justice we hope for is
restorative of the dignity of the people.91
Tutu’s claim is borne out by commentators on African legal theory.
Chukwuemeka Ebo comments in relation to West African legal theory:
The primary purpose of indigenous justice is to maintain equilibrium
between interests ... the true aim of justice is the restoration of the
balance upset by an unjust act. Law is not punitive in the familiar
modern sense that it seeks to inflict punishment on the offender.92
Describing South African customary law, TW Bennett avers that
in most African societies courts tended to mediate or arbitrate the cases
brought before them rather than to adjudicate. In these circumstances
the proposed solution to disputes was the reconciliation of the
litigants.93

90 Dyzenhaus (n 12 above) 493.

91
Quoted in Minow (n 6 above) 81.
92 C Ebo ‘Indigenous law and practice: Some major concepts and practices’ in G
Woodman & AO Obilade (eds) African law and legal theory (1995) 33 34.
93
TW Bennett A sourcebook of African customary law for Southern Africa (1991)
54.
 Chapter 9 173

In this light restorative justice is ‘a major casualty in the colonial

suppression of African traditions’94 and its resurrection in the TRC
constitutes a recuperation of that tradition. Of course, restorative
justice should not be valued simply as a tradition; many traditions are
unjust. But if restorative justice is a compelling alternative to
retributive justice, the fact that it has precedent in Africa may give
us another reason to value it, depending on how we respond to
communitarians’ insistence that we should place great store in
articulations of justice rooted in local customs. At the very least, it
answers the objection that restorative justice is a Western import
and, as such, a colonial imposition.
The TRC’s unmasking of wrongful acts and actors, through the
granting of amnesty in exchange for truth, is itself instrumental to
justice, since without truth it is not possible to distinguish the
innocent from the guilty, particularly if, as the AZAPO Court noted,
government officials and their agents covered up their crimes and
destroyed documents prior to transition. Truth also serves justice by
overcoming the fear and distrust pervasive in apartheid, preventing
the injustice of the past from surreptitiously contaminating the
present, and by establishing the openness necessary for a vibrant
democracy.95 Revealing the truth about abuses committed by the
state and others during apartheid will help to prevent human rights
abuses from recurring. The televising of victims’ and perpetrators’
statements not only provided the families of victims with information
about the fate of victims, but also forced whites who had been
complicit with apartheid, whether through action or omission, to
become aware of the horrors of apartheid, a process crucial to
reconciliation and the creation of a democratic culture.
Faced with these benefits, advocates of prosecution can claim
that even if the TRC does promote these things, trials do so too, and
have the advantage of retaining the concept of justice traditionally
considered central to human rights violations — retribution. Yet it is
difficult to see how this could be so. That the TRC produced more
truth than criminal trials would have done is generally conceded even
by opponents of the TRC and is due partly to the TRC’s amnesty
incentive.96

94 Minow (n 6 above) 82.

95
Kiss (n 12 above) 71.
96
But contrast F du Bois ‘“Nothing but the Truth”: The South African alternative to
corrective justice in transitions to democracy’ in EA Christodoulides & S Veitch
(eds) Lethe’s law: Justice, law and ethics in reconciliation (2001) 91 110, who
writes: ‘[A]lthough the TRC seems to have ranged wider than a court might have
felt able to, this did not make its truth any more significant or powerful than that
which a court would have spoken ... the TRC’s truth failed to assert anything
distinctive into the network of power relations.’ I disagree. The TRC has inserted
something valuable into the network of power relations — acknowledgment of
truths that courts would have been unable to ascertain has filled a silence on
which abuses of power thrive.
174 Patrick Lenta

It is also the case that truth commissions focus on victims in a way

that trials do not. Trials expose victims to an adversarial atmosphere
that does not encourage victims to relate their narratives of abuse as
they themselves understand them. Reconciliation, ‘reconstructing a
relationship, seeking to heal the accused, or indeed, healing the rest
of the community’ are not the goals of trials. Trials and truth
commissions speak in different registers: ‘[T]he very vocabularies of
healing and restoration are foreign to the legal language underpinning
prosecutions’.97 Added to the structural inadequacies of trials are
features of the South African legal system which would have made
effective prosecution very difficult. South Africa’s criminal justice
system is, or at least was at the time of the TRC, in the words of Van
Zyl, ‘virtually dysfunctional’.98 Furthermore, trials that have been
carried out against perpetrators have proved prohibitively expensive
and time consuming.99
According to Moellendorf, justice demands that amnesty should
be withheld from at least perpetrators of certain classes of act.100
The drawback of this argument is that to prosecute the most serious
abuses selectively creates the impression that certain perpetrators
are being scapegoated so that others may safely rejoin society. It is
true that the TRC was selective in that it permitted only a proportion
of victims to tell their stories, but the stories related in hearings of
the TRC were representative of all sorts of crimes, so that each
testimony stood for itself and for all others which it resembled,
testifying to a society’s culpability and damage, rather than
dispensing with the problem as a matter of a few persons who could
be proven guilty.
In its trading of retributive justice for truth, the TRC achieved a
measure of justice even by the standards of criminal justice. The right
to have justiciable disputes settled in a court and to insist that
wrongdoers be prosecuted is not inviolable where the consequences
of enforcing the right would be exceedingly bad. In this case, as the
AZAPO Court noted, those consequences were
substantially prejudicial for the people of a country facing, for the first
time, the real prospect of enjoying, in the future, some of the human
rights so unfairly denied to generations which preceded them.101
Only a theory of mandatory retribution — the idea that all crimes
should be followed by punishment whatever the consequences —
insists on punishment even when it would result in morally bad
consequences. The mistakenness of mandatory retribution becomes
evident once it is recognised that, compared to the TRC, retribution

97
Minow (n 6 above) 26, 63.
98 n 17above, 651.
99 Van Zyl (n 17 above) 652-653.
100
Moellendorf (n 13 above) 290.
101 AZAPO (n 1 above) para 50.
 Chapter 9 175

may impede the restoration of dignity and agency to victims and

prevent the consolidation of democracy.
The issue of the morality of amnesty is a particular case of what
is sometimes called the problem of ‘dirty hands’, an acute moral
dilemma whereby in doing the best thing in the circumstances, we
cannot avoid doing wrong.102 In such a situation, violating a
deontological requirement so as to avert excessively bad
consequences that would follow were the deontological restraint to
be observed may be the right thing to do, all things considered. But it
is difficult to regard the dilemma as having been satisfactorily
resolved.103 Thus, we want to say of foregoing punishment that
victims have a legitimate and morally justifiable claim to retribution,
and that in failing to honour this claim ‘we know we have done
something wrong even if what we have done was also the best thing
to do on the whole in the circumstances’.104 We can even say that the
choice between amnesty and retribution is morally tragic, in the sense
that the choice cannot be made without ignoring the legitimate pull
of important moral considerations.105 We nevertheless have to choose
in such situations and we have good reasons to choose amnesty. In
Dyzenhaus’s compelling assessment:
[T]he more convincing accounts of transitional justice as special in
virtue of its restorative aspects emphasise the way in which the choices
in the design of the TRC sacrificed criminal justice for the sake of truth
and reconciliation. They acknowledge that the sacrifice is a matter of
deep moral regret — something fundamental has been lost. But it was
not only that the sacrifice was required by realpolitik that justifies it,
but that to the extent that the TRC can be understood in terms of the
restorative justice model, it did not fail entirely to live up to the
commitments of criminal justice.106

6 An international law duty to prosecute?

A number of commentators have excoriated the AZAPO Court for

failing to adhere to the duty to prosecute human rights violations
imposed by international law.107 Orentlicher argues that international

102
N Walzer ‘Political action: The problem of dirty hands’ (1973) 2 Philosophy and
Public Affairs 160.
103
As B Williams Moral luck: Philosophical papers 1973 — 1980 (1981) 74 puts it:
‘[T]hough it can actually emerge from deliberation that one of the courses of
action is the one that, all things considered, one had better take, it is, and it
remains, true that each of the courses of action is morally required, and at a level
which means that, whatever he does, the agent will have reason to feel regret at
the deepest level.’
104
Walzer (n 102 above) 171.
105 Dyzenhaus (n 66 above).
106 D Dyzenhaus ‘Judicial independence, transitional justice and the rule of law’
(2003) 10 Otago Law Review 345 369.
107 Roht-Arriaza & Gibson (n 15 above); Wilson (n 13 above) 170-172.
176 Patrick Lenta

law treaties and international customary law oblige successor

governments to prosecute those responsible for human rights
violations.108 She acknowledges that a new regime need not
prosecute all perpetrators, and that exemplary prosecutions may
suffice, but strongly condemns blanket failures to prosecute.
According to the AZAPO Court, the question was whether amnesty
is consistent with the Constitution and, if it is, whether ‘the enquiry
as to whether or not international law prescribes a different duty is
irrelevant’.109 In considering whether international law should
influence its interpretation of the Constitution, the Court noted that
in the case of the Geneva Conventions, ‘the content of these
conventions in any event do not assist the case of the applicants’.110
Roht-Arriaza and Gibson express dismay at the Court’s casual
approach to international law and its failure to explore the issue more
fully and to consider the views of international bodies. For these
commentators, ‘the court seems to have reduced the function of
international law in constitutional interpretation to a meaningless ad
hoc rationalisation’.111 They insist that, as in the Makwanyane
decision, ‘international law should have played a role in
interpretation, not merely as an after-the-fact potential limit on a
decision already made’. Jenkins similarly observes that the Court’s
failure to include any consideration of the requirements of customary
international law suggests a reluctance to come to the conclusion that
an amnesty from criminal prosecution might be a breach of South
Africa’s international obligations.112
Roht-Arriaza and Gibson’s and Jenkins’s critique is partly correct.
The Court’s half-hearted investigation of the question of amnesty in
international law and its mention of only three countries in which
amnesty had been granted would seem to indicate that it had made
up its mind on the question of amnesty and did not want any contrary
norms within international law to interfere with its decision. Even if
the Constitution provides that international law is not binding on the
Court, the Court is still obligated to explore fully the nature of the
relevant obligations and justify its departure from them.
Nevertheless, even if the Court failed to provide a persuasive
interpretation of international law that is consistent with the granting
of amnesty, it is not clear that no such interpretation exists.
Critics who allege that there is a duty under customary
international law to prosecute pay insufficient attention to the many
occasions in recent years on which amnesty has been granted to

108 DF Orentlicher ‘Settling accounts: The duty to prosecute human rights violations
of a prior regime’ (1991) 100 Yale Law Journal 2539.
109 AZAPO (n 1 above) para 26.
110 AZAPO (n 1 above) paras 27& 28.
111
Roht-Arriaza & Gibson (n 15 above) 874.
112 Jenkins (n 10 above) 475.
 Chapter 9 177

human rights violators. As Michael Scharf observes in an article whose

publication coincides with the year AZAPO was decided, ‘state
practice does not yet support the existence of an obligation under
international law to refrain from conferring amnesty for crimes
against humanity’.113 Despite Dugard’s initial suggestion that South
Africa’s truth and reconciliation process was inconsistent with
international law,114 he has more recently conceded that the process
does comply with international law, since state practice is ‘too
unsettled to support a rule of customary international law prohibiting
amnesty’.115 More recently, in a comparative survey of the forms of
amnesty granted in different countries, Ronald Slye suggests that only
‘accountable’ amnesties are eligible for recognition and respect by
foreign states and international tribunals. He suggests that the South
African amnesty is the only one to date that comes close to qualifying
as an accountable amnesty.116
As Carlos Nino observes, the problem with the idea of
international law as imposing a duty which indiscriminately requires
that all transitional societies carry out prosecutions is that, were it to
do so, it would be ignoring the particular history and context of such
societies. To require prosecutions in all cases is to ignore the
possibility of democracy-threatening consequences that could issue
from prosecutions in certain societies.117 If international law required
that prosecutions be carried out in all cases, newly established
regimes would have to refrain from taking actions necessary to
facilitate successful transitions in the light of particular circum-
stances unforeseen by international law. If international law were
inflexible in this way, the moral force of its injunction would be
undercut by the moral benefits secured by breaching international
law. In the light of this evident absurdity, Nino concludes, it is
unlikely that there exists a duty, or at least a duty that would be
enforced by sanctions, under international law to prosecute.118 ‘What
is needed, instead’, Nino argues, ‘is a system whereby the
international community must consider the unique problems a
particular successor democratic government faces and support the
efforts that are needed to secure democracy and hence, human rights
for the future’.119

113 MP Scharf ‘The letter of the law: The scope of the international legal obligation
to prosecute human rights crimes’ (1996) 59 Law and Contemporary Problems 41
56.
114 Dugard (n 15 above) 279.
115
Dugard (n 17 above) 306-307.
116
RC Slye ‘The legitimacy of amnesties under international law and general
principles of Anglo-American law: Is a legitimate amnesty possible?’ (2002) 43
Virginia Journal of International Law 173 246.
117 C Nino ‘Response: The duty to punish past abuses of human rights put into
context: The case of Argentina’ in Kritz (n 6 above) 417 436.
118
Nino (n 117 above) 428.
119 Nino (n 117 above) 436.
178 Patrick Lenta

7 Civil liability

Assuming then that the Court was justified in its decision to refuse to
invalidate the amnesty-for-truth arrangement in respect of criminal
liability, does it follow that the Court was right to uphold civil
indemnities for perpetrators and the state? Moellendorf makes the
point that the amnesty provisions set out in the Act are not required
by the postamble of the interim Constitution which is, he says,
‘deliberately vague about the mechanisms, criteria, and procedures
of amnesty’.120 He argues that indemnity for civil liability was not an
essential term of the compromise reached between the negotiating
parties, since if it had been an essential term it would have been
specifically provided for in the postamble. In fact, the decision to
permit amnesty against civil liability was the result of parliamentary
discussions and debates, and as such, though it bears the seal of
democratic legitimacy, is not directly mandated, that is, required, by
the Constitution. Accordingly, amnesty in respect of civil liability
needs to be justified.
Wilson objects to civil amnesty for perpetrators, while
Moellendorf objects to civil amnesty for the state. Wilson concedes,
somewhat incongruously with his sustained position that retribution is
a crucial aspect of human rights, that amnesty may indeed have been
a politically indispensable feature of the compromise, provided that
other alternatives may have been explored, such as a mechanism where
the state could grant amnesty from criminal prosecutions but not from
civil prosecutions [sic], which could have been brought by families of
victims such as the Ribeiros, the Mxenges and the Bikos.121
The issue is whether allowing civil claims against perpetrators would
deter them from telling the truth or whether criminal amnesty would
be sufficient by itself to encourage truth telling. The Court argued
that without both criminal and civil amnesty wrongdoers would lack
incentive to tell the truth.
The appearance of injustice is more pronounced if amnesty is
extended to civil claims against perpetrators, since victims may be
deprived of their final avenue of redress in the absence of the
possibility of claims against the state. To avoid this impression, Kent
Greenawalt suggests:
Why not say that those whose confessed identity as offenders earns
amnesty from criminal prosecution will be vulnerable to civil liability up
to a percentage of their assets or income? The prospect of moderate
civil liability would hold open some opportunity for redress of victims. It
would probably not discourage offenders from admitting their guilt,

120
Moellendorf (n 13 above) 290.
121 Wilson (n 13 above) 27.
 Chapter 9 179

since they would earn immunity from criminal prosecution and a partial
civil immunity that would prevent them from being impoverished by
having to pay damages.122
The modality of ‘would probably not discourage offenders’ is
unavoidably vague. We cannot know whether and in what numbers
perpetrators would refuse to testify by reason of their continued
exposure to civil claims. For Greenawalt, the exclusion of civil
indemnity is worth the risk in view of the compensation it could
provide for victims. By contrast, the Court thought that, provided the
language permitted civil amnesty and provided that parliament had a
good reason for providing for civil amnesty, deference should be
displayed towards the decision of the democratically elected
parliament:
Parliament was therefore entitled to enact the Act in the terms which it
did ... They could have chosen to insist that ... the terms of amnesty
should leave intact the claims which some of these victims might have
been able to pursue ... They were entitled to choose the second course ...
The choice of alternatives legitimately fell within the judgement of the
lawmakers.123
These explanations evidence the Court’s reluctance to intrude into
the realm of policy.124 In my view, the Court is justified in its stance
given the uncertainty about whether the prospect of civil claims
would deter perpetrators from testifying.
Moellendorf objects to the Court’s justification of amnesty for the
state for two reasons. First, he says,
Mahomed DP writes as if the indemnity from civil liability enjoyed by the
State as a result of the Act is somehow required by the interim
Constitution. It is bizarre to assert that the interim Constitution required
this.125
In fact, just the opposite is true: Mahomed DP emphasises that the
Constitution merely permits parliament to make the election that it
made.126 He states that the postamble ‘left it to parliament to decide
upon the ambit of the amnesty, the permissible form and extent of
such reparations and the procedures to be followed’.127 This is very
different from saying that the postamble ‘required’ amnesty for the
state.
It is nevertheless the case that the rhetoric of entailment that
Moellendorf identifies is present at certain points in the judgment.

122
Greenawalt (n 14 above) 202.
123
AZAPO (n 1 above) para 50.
124 On the subject of judicial restraint, for a discussion and qualified defence of
judicial deference, see P Lenta ‘Judicial deference and rights’ (2006) Tydskrif vir
die Suid-Afrikaanse reg 456.
125 Moellendorf (n 13 above) 291.
126
AZAPO (n 1 above) para 45.
127 AZAPO (n 1 above) para 47.
180 Patrick Lenta

Mahomed DP writes that the broader amnesty favoured by parliament

is ‘authorised and contemplated’128 by the postamble. While it might
be accurate to say that the postamble permits the wider forms of
amnesty in the sense that, because of its generality, it does not rule
them out, it is artificial to suggest that the postamble ‘contemplated’
broad amnesty when it is silent on this issue. Nevertheless, that
Mahomed DP should choose the word ‘contemplated’ to describe the
connection between the postamble and the extended amnesty is not
at all ‘bizarre’, as Moellendorf thinks. It is a rhetorical strategy
whereby the Court effaces its agency in interpreting the postamble by
locating its interpretation in the postamble itself, when in fact
interpretation is, at least in part, a product of the agency of the
interpreter.129
Second, Moellendorf argues, Mahomed DP’s argument that civil
actions against the state would deflect funds from being distributed
in a way that accords with distributive justice is unfounded. Mirroring
Greenawalt’s suggestion in respect of the civil liability of
perpetrators, Moellendorf enquires, ‘Why, for example, would civil
liability, with some upper limit, in cases of gross human rights abuses
be inconsistent with the broader aims of reconstruction?’130 He
follows Didcott J’s contention that
unless perhaps its amount unbeknown to us is prohibitively high in
relation to our national revenue and expenditure, it does not strike me
as a strong reason for depriving the persons to whom the obligations are
owed of their normal and legal due.131
A reply to this objection is suggested by Mahomed DP. It is
‘irrational’132 to favour a subset of a broader group of victims that
suffered abuse under apartheid, many of whom are saddled with the
disastrous consequences, not because the members of the subset are
more deserving of relief and compensation, but because the claims of
other victims have prescribed or because the abuse that they have
suffered is systemic and therefore not classifiable into one of the
categories of delict. It is irrational because the most pressing dilemma
facing post-apartheid South Africa is the dilemma of distributive
justice — the need to establish how best to apportion the resources of
the state to alleviate the hardship of the least well off, a group which
in the South African context corresponds to the group most affected
by apartheid’s policies. Legal claims for compensation by the state
from those who have a delictual claim must be secondary to the
demands of distributive justice. Of course, if the financial resources

128 AZAPO (n 1 above) para 38.

129
See P Lenta ‘Rainbow rhetoric’ in M du Plessis and S Pete (eds) Constitutional
democracy in South Africa 1994 –– 2004 (2004) 15.
130 Moellendorf (n 13 above) 29.
131
AZAPO (n 1 above) para 55.
132 AZAPO (n 1 above) para 44.
 Chapter 9 181

of the state were sufficiently great, victims with delictual claims may
think — quite correctly — that the amount awarded, subject to a cap
on the maximum amount awardable under each claim, would provide
them with a degree of compensation, yet represent an almost
invisible diminution of the common stock. However, in South Africa
the financial resources of the state, relative to claims for a minimal
level of health care, food and education, are small and subtractions
of delictual claims from available funds would detrimentally affect
the amount that can be invested to ensure an absolute social
minimum of welfare in cases of need.
Of course, as Moellendorf notes, the Court’s argument is
compelling only if the hardships of the worst off are indeed
alleviated. As it transpires, the government has largely reneged on its
promise to provide reparations as directed by the TRC R/report on
reparations. By the same token, the disparity in wealth between the
historically privileged (whites) and the historically oppressed (blacks)
remains largely undisturbed either by the workings of the TRC or by
government policy, though it is true that a substantial black middle
class has emerged. Mahmood Mamdani has criticised the TRC as an
institution that is focused on too narrow a concept of injustice —
‘abuses within the legal framework of apartheid: detention, torture,
murder’ — instead of the systemic injustices of apartheid that include
‘forced removals, pass laws, broken families’. This deflects attention
away from the need for reparations not just for victims of human
rights violations, but also ‘for those who suffered only forced labour
and broken homes’.133 Mamdani argues that unless justice includes
the redistribution of wealth from the economic beneficiaries of
apartheid to those who were its economic victims — unless it includes
the kind of systemic reform that only the government can provide —
it will be justice in name only.

8 Conclusion

The dilemma of amnesty presented the AZAPO Court with a situation

in which there was no completely moral course for it to take. Nagel
adduces an example in which an individual ‘makes two incompatible
promises or commitments’. There is no moral solution available to the
individual because fulfilling one promise or commitment necessarily
means failing to observe the other.134 This example is helpful in
understanding the amnesty dilemma because there is a sense in which
the Constitution makes two incompatible promises or commitments:
It provides a right to have disputes settled in a legal forum and it is

133 M Mamdani ‘Reconciliation without justice’ (1996) 46 Southern African Review of

Books available at http://www.uni-ulm.de/~rturrell/antho3html/Mamdani.html.
134 T Nagel ‘War and massacre’ in Mortal questions (1979) 74.
182 Patrick Lenta

committed to the granting of amnesty in order to secure

reconciliation. The Court’s decision — which is consistent with what I
have referred to as transformative justice — is not perfect, but then,
as Nagel observes, ‘it is naïve to suppose that there is a solution to
every moral problem with which the world can face us’.135

135 As above.
List of contributors

Jaco Barnard, Department of Private Law, University of Cape Town.

Michael Bishop, Clerk at the South African Constitutional Court.

Lourens du Plessis, Department of Public Law, University of

Stellenbosch.

Patrick Lenta, Department of Philosophy, University of Kwa-Zulu

Natal.

Wessel le Roux, Department of Constitutional, International and

Indigenous Law, University of South Africa.

Tshepo Madlingozi, Department of Legal History, Comparative Law

and Jurisprudence, University of Pretoria.

Nthabiseng Mogale, Department of Justice, South Africa.

Johan Snyman, Department of Philosophy, University of

Johannesburg.

Karin van Marle, Department of Legal History, Comparative Law and

Jurisprudence, University of Pretoria.

183
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Index

A
Adorno, T ix; 3-5
Allen, J 163; 165; 167; 168; 170
ANC xii; 99; 100; 108; 112; 114; 115; 122-124;
126; 145; 146; 152; 153; 157; 159; 165
apartheid v-vii; ix-xiii; 5; 9; 18; 22; 34; 35; 37; 39; 42;
43; 48; 51; 65-68; 73-78; 81-83; 85-87; 94-
97; 99-112; 116-125; 127-129; 131; 132;
137-141; 143; 145-147; 153; 155; 157-159;
162; 165; 166; 168-171; 173; 180; 181
architecture 65; 80; 89
archive
archive writing 96
Arendt, H 14; 85
Argentina 147; 156; 177
Armscor 100; 101
art ix; 11; 13-15; 17; 21; 22; 24; 25; 30; 37; 69
Auster, P 20
attentiveness ix; 12; 14; 15; 24; 29; 30; 104

B
bad victim 107; 109
Bender, B 19
beneficiaries xi; 107; 109; 110; 114; 116-119; 125; 181
big business xi; 24; 93; 99; 104; 105; 123
Black Economic Empowerment 112; 126
(BEE) Program
Blanchot, M 103; 106
bridge
transformative bridge 36; 37; 49
transitional bridge 34-38; 49

C
Chile 5; 6; 147; 156
civil liability v; 53; 151; 152; 178-180
CODESA 152
compensation 4; 53; 112; 121; 134; 140; 147; 157; 179-181
constitutionalism
constitutional duty to remember 76; 89; 90
memorial constitutionalism 8; 18; 67; 77; 85; 87-90
transformative constitutionalism vii; x; 23; 24; 36; 37; 49; 51; 52; 67; 75; 89
counter-monumental 65; 70; 76; 77; 82; 83; 85-87
constitutionalism
post-apartheid constitutionalism 67; 75; 85; 88
Cornell, D 12; 13; 25; 26
criminal justice 66; 117; 166; 174; 175

D
democracy 34; 36; 42; 43; 63; 78; 80; 81; 119; 125;
127; 130; 150; 152; 158-160; 162-166; 172;
173; 175; 177; 180
Derrida, J 25; 26; 93-98; 103-106
Dugard, J 57; 131; 136; 137-140; 142; 143; 149; 151;
152; 159; 171; 177
Dworkin, R 160
Dyzenhaus, D 151; 165; 167; 168; 172; 175

200
 Index 201

E
El Salvador 156
Equalisation Fund 100

F
Fagan, E vii; 75
Fanon, F 169

G
Geneva Convention 141; 142; 156
good victim 107
gross human rights violation 17

H
Hobhouse, E 7; 9; 72
Holmes, OW 18; 20; 21
Howse, J 166; 167
Human Rights Violations Committee 109

I
international law x; xii; xiii; 5; 45; 53-59; 62; 63; 86; 127;
131; 136-144; 149; 151; 152; 154-156; 175-
177

J
justice
justice as ethos 168; 170
justice as recognition 168
restorative justice xii; 16; 89; 149; 151; 165-167; 170; 172;
173; 175
retributive justice xii; 167; 173; 174
social justice 75; 87-89; 107-109; 111-113; 116; 117; 119;
125; 126; 128
criminal justice 66; 117; 166; 174; 175
transitional justice 11; 12; 35; 52-54; 76; 89; 107; 109; 113;
149-152; 165; 175

K
Kant, I 5; 37; 163; 164
Kentridge, W 14; 21-24; 29; 54
Khulumani Support Group xi; 109; 119-123; 125; 126
Kiss, E 151; 165; 167; 168; 173
Klare, K vii; 52; 75; 89
Krog, A 6; 9; 14-16; 26-28; 170
Kundera, M 11; 12

L
legal interpretation xiii-x; 12-15; 24; 25; 29-31; 33; 46; 74; 85;
86
legitimacy xii; 61; 81; 147; 177; 178
limits of law ix
Llewellyn, R 166; 167

M
Mahnmal x; 62; 64; 88
202 Index

Mamdani, M 116-119; 125; 126; 181

Mason, J 83; 84
memory
memorial xiii; x; 9; 18; 24; 38; 51; 61-64; 67-73; 75-
77; 80-83; 85-90; 97; 106; 117
memory in interpretation 33; 38; 41; 49
memory making viii
politics of memory viii; x; xi; 4; 11; 18; 61; 67-70; 72; 75-77;
85; 86; 89; 90; 119
constitutional duty to remember 89; 90
memorial constitutionalism viii; 18; 67; 77; 85; 87-90
Minow, M 25; 150; 165; 169; 171-174
Moellendorf, D 151; 158-165; 174; 178; 179-181
monument x; 18; 19; 38; 61; 68; 69; 71; 73-75; 81; 86;
88

N
Nagel, T 170; 181; 182
Nietzsche, F 3
Nino, C 177

O
Orentlicher, DF 143; 144; 148; 175; 176
Orwell, G 44

P
particularity ix; 11; 13; 15; 18; 21; 24-26; 29; 30; 74; 97;
104
perpetrators v; xi; xii; 3; 6; 9; 52-54; 57; 60; 106; 109;
110; 114-119; 122; 125; 127; 128; 131-136;
139; 141; 143; 147; 150-153; 155-157; 159-
161; 164; 166-171; 173; 174; 176; 178-180
politics
political reconciliation xi; 88; 108; 125; 172
politics of memory viii; x; xi; 4; 8; 18; 61; 67-70; 72; 75-77; 85;
86; 89; 90; 119
politics of redistribution xi; 119
politics of reparation xi
political, the 8; 35; 54; 60; 61; 63; 115; 124; 155; 159;
165

R
redistribution xi; 109; 113; 118; 119; 123; 124; 126; 181
reparations v; vi; xii; 4; 53; 93; 102; 111-113; 120-123;
126; 128; 130-136; 140; 148; 152; 157; 158;
179; 181
republicanism 85

S
Scharf, M 177
slowness ix; 11-15; 18; 20; 24-26; 29-31; 74; 97; 98
social reconciliation xi; 88; 120; 125
strategy of delay 15; 25; 26; 98
struggle theory 88

V
victims
bad victim 107; 109; 112; 113; 119
 Index 203

good victim 107; 112; 113

W
Walzer, M 158; 167; 175