African National Congress
Statement to the Truth and Reconciliation Commission

August 1996

Contents

Executive Summary

[This summary serves merely to identify the primary issues in the submission and should not detract from the matters raised in the main document]

1. INTRODUCTION

The ANC supports the work of the TRC. By knowing what happened and why it happened, South Africa will be better placed to ensure that the evil deeds of the past are never repeated.

This submission aims to relate directly to matters within the TRC's jurisdiction, while providing a context within which the points in the submission can be better understood. It is neither a definitive or comprehensive account of the period under review.

2. HISTORICAL CONTEXT

2.1 COLONIALISM AND RESISTANCE TO 1960

The process of colonial conquest lasted over two centuries, culminating in the formation of the racially-exclusive Union of South Africa. In 1948, the National Party came to power and between 1948 and 1960, legislation was introduced to give material meaning to previous racial segregation and discrimination, to limit civil liberties and to suppress political dissent.

Formed in 1912, South Africa's oldest national political organisation, the African National Congress' core principles were to promote unity, counter racism and work towards equal rights for all South Africans.

In the early decades of its existence, the ANC was conspicuously committed to act within the law.

The Sharpeville massacre on 21 March 1960, and the subsequent banning of the ANC signalled the beginning of a new era in South African history - an era in which repression and conflict were to reach their peak.

2.2 THE INTERNATIONAL CONTEXT

The ANC was internationally recognised as a liberation movement. Various UN resolutions on liberation struggles are significant in that they:

It was argued, and accepted, in the UN that the self-determination of the South African people had not taken place.

Thus, it would be morally wrong and legally incorrect to equate apartheid with the resistance against it. While the latter was rooted in the principles of human dignity and human rights, the former was an affront to humanity itself.

An examination of relevant international conventions, declarations, resolutions, judicial decisions and the practice of the United Nations and its organs and the practice of regional organisations and states yield affirmation of the following propositions of international law in relation to the apartheid regime:

The South African regime had no right to represent the people of South Africa, its illegitimacy arising from systematic breaches of peremptory rule of international law.

3. NATIONAL PARTY, APARTHEID AND REPRESSION

Apartheid was founded on, and represented an intensification of, the colonial system of subjugation of Africans, coloured and Indians.

To entrench and defend Afrikaner and white dominance, the NP set about to transform the judiciary, the army, the police, intelligence services, academia, the civil service, economic and labour relations and parastatals; and it increasingly relied on force.

Apartheid oppression and repression were therefore not an aberration of a well-intentioned undertaking that went horribly wrong. Neither were they, as we were later told, an attempt to stave off the 'evil of communism'. The ideological underpinning and the programme of apartheid constituted a deliberate and systematic mission of a ruling clique that saw itself as the champion of a 'super-race'.

3.1 APARTHEID REPRESSION

From the outset, the National Party introduced a combination of social and repressive laws to pursue its overall political and economic objectives.

During the 1960s the government's transgression of human rights became more blatant. Central to the new authoritarianism were sweeping restrictions on political behaviour; an increase in the powers of the police and further subversion of the independence of the courts; and sweeping provisions for detention without trial that created conditions in which the use of torture during interrogation became widespread.

From its inception in the early 1960s, the security legislation and its implementation have generated widespread reports of mental and physical abuse of people held in detention. Individual officers abused their powers of interrogation; interrogation became torture; torture became routine.

3.2 INSTITUTIONAL VIOLENCE AND SOCIAL CONSEQUENCES

During the 1960s, concurrent with the new security legislation, the apartheid rulers embarked on radical new forms of social engineering designed to entrench white minority rule. Instances of such "bureaucratic terrorism" included:

Basic apartheid measures systematically denied black South Africans 'first generation' rights like the franchise, civil equality, freedom of movement and freedom of association. The social order underpinned by apartheid also ran roughshod over 'second generation' rights, such as the right to education, health care, security and social welfare.

3.3 JUDICIAL REPRESSION

Whole sectors of South African society - the law courts, churches, media, education, business, sports and cultural sectors - both actively and indirectly reinforced apartheid exclusion, discrimination and the violation of human rights.

The South African judicial system was racially and ideologically biased in the interests of the apartheid system. Selected judges were in many cases put in charge of political trials and were responsible for the judicial murder of people fighting against apartheid. In many cases judges allowed evidence that was extracted under torture or duress.

Judicial commissions produced ideologically-oriented reports which promoted the goals of the apartheid state. Law societies and bar councils struck from the roll anti-apartheid activists convicted of political crimes.

The catalogue of legal discrimination and injustice that occurred under apartheid needs to be acknowledged if a human rights culture is to flourish in the new South African legal system.

3.4 MASS REPRESSION IN 1970s

In the early 1970s, spontaneous and organised mass resistance started to surface for the first time in a decade. The response of the regime was brute force. The actions of the regime in 1976/7 brought out in bold relief the government's intention to deny human rights at all costs.

Notes taken by then Minister of Police Jimmy Kruger illustrate this:

"10.8.76 Unrest in Soweto still continues. The children of Soweto are well-trained. The pupils/students have established student councils. The basic danger is growing black consciousness, and the inability to prevent incidents, what with the military precision with which they act. The minister proposed that this movement must be broken and thinks that police should act a bit more drastically and heavy-handedly which will entail more deaths. Approved."

3.5 TOTAL STRATEGY IN 1980s

The National Security Management System (NSMS) was instituted in 1979 as an attempt to ensure maximum coordination of practices already in use in line with the government's 'total strategy'.

This period saw the genesis of a trend towards increasingly sophisticated covert operations, continuing into the 1990s, which included illegal methods to suppress and disrupt the resistance movement. In addition to attempts to bolster the discredited bantustan and community councillor systems, there were renewed attempts to find or 'create' credible alternatives to the ANC.

The State Security Council (SSC), which was at the apex of the NSMS, although technically a committee of the cabinet, usurped many of the cabinet's executive functions. Ultimate control of the SSC and NSMS was vested in the Office of the State President. It controlled a totalitarian network which reached into every part of the country.

Repression during this period assumed both a formal and an informal nature. Formal repression included:

In addition to these overt repressive measures, a whole range of covert activities were conducted by the state or its proxies.

One of the tactics used was that of counter-mobilisation. During 1985 and 1986, a range of front companies were set up in South Africa to orchestrate 'black-on-black' violence, foster viable alternative 'liberation movements' and spread NP propaganda. No fewer than 23 sub-projects were running in Namibia and South Africa in 1986, some of them with agents in the media.

Another tactic was the use of vigilantes and surrogates to perpetrate violence against democratic formations. During the course of 1985 various 'vigilante' groups and bizarre criminal gangs suddenly appeared in townships all over the country. 'Kitskonstabels' were introduced in late 1985, mostly to bolster unpopular community councillors.

Operation Marion, which involved the training of an offensive para-military unit of IFP supporters is currently the subject of the KwaMakutha massacre trial.

Plans were also being drawn up in mid-1986 for the formation of a 'Xhosa Resistance Movement', which would in nature - and even extent - be similar to Inkatha and would together with our security forces form a counter-revolutionary front.

Linked to this was the use of state-sanctioned 'hit squads' in extra-legal terror and assassinations by the Civil Co-operation Bureau and Vlakplaas police unit.

The Human Rights Commission recorded around 100 assassinations and around 200 attempted assassinations of anti-apartheid figures inside and outside the country between 1974 and 1989.

The apartheid regime did not shrink from the use of poison in its attempts to murder its opponents. In 1977 agents attempted poisoned the food of some 500 MK cadres undergoing training at Catengue camp in Angola.

The cases of Siphiwo Mthimkulu, Frank Chikane, Thami Zulu, and an attempt to kill Dullah Omar are some of the better known examples of the use of this tactic.

Further, "Project B", a top-secret, multi-million rand project run by the former SADF, included chemical and biological weapons projects, which was still operational as late as 1993.

It has been alleged by people close to these programmes that research on organophosphates and cancer-inducing agents were carried out, and even President Mandela was considered a target.

3.6 DESTABILISATION IN THE 1980s

Total Strategy included destabilisation in neighbouring countries. In a Commonwealth report of 1989 this destabilisation during the 1980s is described as having reached "holocaust" proportions. The report added that at the time the human cost was 1,500,000 dead through military and economic action, most of them children, while a further four million had been displaced from their homes. The economic cost to the six Frontline states was estimated to exceed 45 billion US dollars, not to mention the destruction of agriculture, industry, education and health care in countries like Mozambique and Angola.

Among the external destabilisation methods used by the apartheid state were:

Through a number of cross-border raids, supposedly to attack 'ANC bases', the SADF showed callous disregard for the lives of civilians. These attacks were characterised by a "shoot first, and ask questions latter" approach.

3.7 COVERT ACTION AFTER 1990

State terrorism and covert operations by the apartheid government and security forces did not end with the unbanning of the ANC and other organisations in 1990, and the formal commencement of negotiations.

The consequences of these campaigns against the democratic opposition were far worse than anything experienced in the emergency years. Between 1990 and 1993, nearly 12,000 civilians were killed and 20,000 were injured in thousands of incidents, including several major massacres. The Human Rights Commission recorded the accelerating pace of assassinations of anti-apartheid figures: 28 in 1990, 60 in 1991 and 97 in 1992.

A top secret document dated 13 March 1990 stated that FW de Klerk was "briefed on a broad spectrum of sensitive projects" and had given his approval "in principle" on "the running of Stratkom projects".

The document also states that "covert stratkom projects are controlled and managed by the secretary of the SSC. . . The Secretary of the SSC receives decisions and orders in this regard from the State President and passes them on to the departments concerned".

Even if the structures were renamed, the security committees chaired by SAP and SADF officers from local to national level remained in place. As the official National Co-ordinating Mechanism manual notes: "the principle of the application of the full powers of the state in order to resist the revolutionary onslaught is still valid."

There have to date been partial, yet telling revelations of the nature an extent of covert operations in the post-1990 phase. To name just a few examples:

The admission by Orde Boerevolk "hunger strikers" after their escape to the UK that they were Military Intelligence agents with a specific brief to destabilise black communities and the ANC.

The November 1992 Goldstone Commission raid on Pan Afrik Industrial Investment Consultants, a Directorate: Covert Collection front company, which provided partial glimpses of other operations, such as those aimed at subverting Self-Defence Units.

There are a few key operatives and commanders who know exactly how these networks functioned, and can help shed light on how extensive this network was; what has happened to it; and what capacity it still has for destabilisation.

FW de Klerk and the then ruling National Party have the responsibility to inform the nation about this machinery and whether part of it is still operational today.

4. PHASES OF STRUGGLE AND ANC POLICY FOUNDATION

4.1 NEW FORM OF STRUGGLE AFTER SHARPEVILLE

The ANC announced its adoption of armed struggle on December 16 1961. The MK manifesto explained that armed activity was necessary because of state violence and curtailment of extra-parliamentary politics.

From the beginning, MK emphasised the supremacy of politics over narrow military activity: in the choice of targets, attitude to civilians, attitude to the white community, and treatment of any captives.

However within its own ranks, debate would rage unceasingly - especially in periods of brutal actions by the regime against unarmed civilians - about the correctness of such restraint. But at all times, the principled approach of the movement would prevail.

4.2 NEW CHALLENGES 1969-79

The 1969 ANC Consultative Conference in Morogoro adopted a new programme, Strategy and Tactics of the ANC, which looked to eventual ANC 'conquest of power' in South Africa and accepted the need for a protracted armed struggle.

Military struggle was seen as forming only part of, and being guided by, a broader political strategy to ensure that the battle against apartheid was fought on all possible fronts.

It was thus difficult to resist the temptation to spread such structures and armed actions in an opportunistic fashion. But, even under pressure the ANC asserted its political position: that the politics of the ANC should guide whoever carried out operations on the basis of its training and supplies.

It is from such contacts that arrangements were being made for Steve Biko to meet Oliver Tambo. This information was leaked by agents of the regime such as Craig Williamson, leading to Biko's arrest and ultimate murder.

4.3 PEOPLE'S WAR AND KABWE

The crucial strategic emphasis which shaped the struggle from 1979 onwards was the necessity for an organised underground political presence to complement armed activities.

In line with this approach, the Revolutionary Council formed in 1969 was restructured to consolidate not only the supremacy of political leadership but also to ensure the task of mass mobilisation and underground organisation received the necessary emphasis.

A special operations group was formed with the mandate of undertaking high profile attacks such as the Sasolburg oil refinery, Koeberg, Voortrekkerhoogte.

At the same time operations by other MK units mounted steadily. One study estimated that 150 cases of armed action took place between 1976 and 1982, overwhelmingly concentrated on economic targets, the administrative machinery of apartheid, the police and SADF installations and personnel.

The tension between such intensification of struggle and the need to avoid a racial war remained with the movement until the last day of the armed struggle.

An instance of this was the debate within the national leadership during the 1981 anti-republic campaign on the choice of targets: when the leadership rejected a proposal to decimate the NP government leadership at a Bloemfontein rally.

At the Kabwe Conference in 1985 consensus was reached on a number of questions, including the approach to military action. Conference reaffirmed ANC policy with regard to targets considered legitimate. But the risk of civilians being caught in the crossfire when such operations took place could no longer be allowed to prevent the urgently needed all-round intensification of the armed struggle.

It was during the mid-1980s that certain attacks on targets with no apparent connection to the apartheid state took place. In some cases these attacks were the result of the 'grey area' which had been a result of anger and/or misunderstanding of ANC policy.

The ANC took action to assert policy with regard to the avoidance of civilian targets, which had in some cases become confused with the need to intensify the struggle 'at all costs'. The January 8th, 1987 statement said MK:

"must continue to distinguish itself from the apartheid death forces by the bravery of its combatants, its dedication to the cause of liberation and peace, and its refusal to act against civilians, both black and white."

In late 1987 MK commanders were instructed by OR Tambo and the NEC to go to all forward areas and as far as possible also to meet with units operating inside the country to reassert ANC policy with regard to the avoidance of purely civilian targets. Failure to comply with these orders would be considered as violations of policy and action would be taken against offenders.

The ANC is immensely proud of the bravery, discipline and selfless sacrifices of its MK combatants. They were prepared to work under conditions in which, if captured, they faced the possibility of being tortured to death, abduction and secret execution, combined with intense pressure to become collaborators or be murdered. They also faced summary executions whether they surrendered or not, and hanging or extremely lengthy prison sentences should they come to trial.

Given these conditions it is remarkable that very few attacks by MK personnel violated ANC policy with regard to targets with no direct connection to the apartheid regime.

4.4 THE ANC AND INTERNAL REVOLT

While the ANC pursued its concerted campaign against apartheid from exile and the underground, the internal struggle became increasingly organised through the trade union movement and re-emerging mass-based political movements.

The formation of the United Democratic Front as a broad internal anti-apartheid umbrella body transformed the South African political landscape. Despite the identification of the UDF and later the Mass Democratic Movement with the ANC, they were essentially separate bodies, and not direct extensions of the ANC.

From 1985 until well after the unbanning of organisations, the apartheid system relied on naked terror and violence to destabilise and disrupt opposition to apartheid.

5. DID THE ANC PERPETRATE ANY HUMAN RIGHTS VIOLATIONS

5.1 ANC APPROACH TO HUMAN RIGHTS AND CONDUCT

It was the policy of the ANC - ever since the formation of MK in 1961 - to avoid unnecessary loss of life. The ANC has never permitted random attacks on civilian targets.

Once MK camps were in existence, part of the training of every MK combatant was political and included an insistence that the enemy should not be defined simply in racial terms. When the ANC became a signatory to the Geneva Convention on the conduct of war in 1977 it was reported to be the first liberation movement in the world to take this step.

However, the morality of the ANC, its objectives then and now, and standards it set itself dictate that we examine the conduct of struggle critically, and acknowledge where errors took place.

5.2 CIVILIAN CASUALTIES IN ARMED OPERATIONS

The 1983 car bomb attack on SA Air Force headquarters in Pretoria is an example of this nature. Nineteen people were killed in the attack, of which at least eleven were SAAF officers. Over 200 people were injured, of which over 70 were members or employees of the armed forces.

Many of those injured may have not been military officers, but were employed by the SAAF, and had thereby directly associated themselves with apartheid military aggression. The location of the HQ of an arm of the SADF responsible for cross-border air raids in a concentrated civilian area was itself a violation of protocols of war.

The ANC's limited use of landmines provides another example of this nature. Though it was easier said than done, Military Headquarters continued to stress policy regarding careful reconnaissance and avoidance of civilian targets.

While regretting all loss of life, the ANC notes that the apartheid regime had declared white border farms military zones, with white farmers integrated into the security system and provided with the tools of war, including automatic weapons.

The much publicised case of the car bomb explosion at the Magoos and Why Not bars in Durban on June 14 1986 provides another case in which civilian casualties occurred in the context of the intensification of the armed struggle.

The operation was carried out during a time of extreme political upheaval in the country, which culminated in the declaration of a nation-wide State of Emergency on June 12. The attack was carried out to commemorate the June 14 1985 raid on Gaberone, in which 12 people were killed (of which only five were ANC members and none was MK). The Magoo's attack was also carried out to commemorate the 10th anniversary of the June 16 1976 uprising.

The Why Not bar was targeted because it was frequented by off-duty members of the Security Forces.

From around December 1985, and particularly during the period from April 1986 to September 1988, a number of attacks on civilian targets with no connection to the state occurred.

With regard to those attacks on 'soft targets' for which MK personnel were responsible, the ANC does not seek to justify such attacks, but insists that the context in which they occurred is relevant.

The ANC has acknowledged that in a number of instances breaches in policy did occur, and deeply regrets civilian casualties. The leadership took steps to halt operations in conflict with policy.

The December 1985 blast in an Amanzimtoti shopping centre, in which five people were killed and over 40 people injured, provides a clear example of the manner in which the behaviour of the apartheid regime was a significant factor in provoking certain attacks which were in breach of policy.

Andrew Zondo, aged 19, admitted to placing a bomb in a rubbish bin in the Sanlam Centre in Amanzimtoti on 23 December 1985.

On December 20 1985, the Pretoria regime had launched a raid on Lesotho in which nine people were killed. In anger, Zondo left a bomb at the shopping centre.

Andrew Zondo spoke with unmistakably sincere regret for the deaths which had occurred. Those responsible for the Lesotho massacre received medals at a secret ceremony. Zondo was sentenced to death five times and refused leave to appeal.

In many cases which will come to the attention of the Commission, attacks on civilians and civilian targets for which the ANC or other mass democratic organisations were blamed were in fact the work of the state: "false flag operations".

In 1981, the former commissioner of police, Johann van der Merwe, claimed that the SAP were aware of the ANC's "dissatisfaction" with Griffith Mxenge's handling of funds sent to him from abroad. The clear inference was that the ANC was responsible for the murder of Mxenge. The murders of Matthew Goniwe and his comrades were similarly ascribed to "UDF/Azapo conflict".

In January 1989, Minister of Law and Order Adriaan Vlok said the police suspected that "trained guerrillas" had been visiting Khotso House, following an explosion there. Former Vlakplaas operatives have subsequently claimed that they were responsible for the attack, and that Vlok in fact congratulated them for this action.

Certain attacks on civilians - including necklacings and attacks on a cinema and restaurants - were in fact carried out by agents of the apartheid state in their continuing attempts to damage the image of the ANC.

5.3 PEOPLE'S COMMITTEES AND SELF DEFENCE UNITS

In the mid-1980s the apartheid state went on a full-scale offensive. Communities began to take steps to defend themselves through establishing what were variously called defence committees, people's militia or self-defence units. The ANC actively encouraged initiatives of this nature on the part of the people. The ANC discussion document titled Broad Guidelines on Organs of People's Power envisaged the development of a system of 'layers' of cadres organised into self-defence units, combat units and MK officers respectively. Each 'layer' had a different function relative to the level of military training received and political control exercised by the ANC.

In so far as any excesses of those combat groups set up by, and SDUs linked to, the ANC, these should be understood in the context of MK operations.

On 6 August 1990, the ANC formally committed itself to a cessation of armed hostilities. Between late August and late September 1990, over 700 civilians had been massacred in attacks on homes, train commuters, and gatherings such as funeral vigils.

Resolutions at the ANC's December 1990 Consultative Conference committed the ANC to assisting people in setting up accountable and non-partisan SDUs. After the 1991 ANC National Conference, some members of Military Headquarters were tasked to attend to the organisation, training and provision of weaponry to SDUs. It was, however, made clear that the overall control of SDUs was to remain with community structures and the MK cadres were to participate as members of the community.

By September 1991, mobile specialist hit-squads had started to take over the work previously done by large identifiable political groups. The second major thrust of the state offensive to prevent SDUs from defending their communities was to infiltrate and subvert them.

The notorious Phola Park SDU - which was headed by a police informer, 'overthrew' the popularly-recognised Resident's Committee and conducted a reign of terror in the area - was a prime example of the latter.

5.4 EXCESSES IN RELATION TO STATE AGENTS

The ANC set up a fully-fledged Security Department in 1969. At the beginning, the ANC was faced with the real constraint that it was operating from abroad, initially with weak underground structures within the country and a mass movement that was only starting to emerge.

Given these circumstances, the ANC wishes to submit that it conducted itself well: above all, by ensuring the survival of a liberation movement which, at the beginning, had everything stacked against it. Yet we do acknowledge that, in the context of this work, excesses did occur.

The 1976 mass exodus of youth coincided with an increase in the number of state agents sent to infiltrate the ranks of the ANC.

The first major instance of their work was the poisoning of food at the Catengue military training camp in Angola in September 1977, where close on 500 trainees were poisoned.

In 1979, the regime launched an air raid on the same camp, the timing and choice of targets indicating clearly that they had information about the outlay of, and routine in, the camp.

At the same time, a number of cases of cadres deployed within the country exposed the fact that there were some state agents within some commanding structures of MK.

In 1981, this started to take the form of overt agitation against the leadership, particularly in Lusaka, Zambia. In the camps, bizarre incidents of indiscipline by a minority of cadres had started to play themselves out.

In addition to attempting to murder cadres and passing on intelligence on military installations, this network and its various subsidiaries supplied information on the movements of leadership figures, carried out surveillance on ANC residences, sent the enemy information on the children studying at Mazimbu, committed various acts of sabotage and stirred up discontent.

This network was uncovered in 1981, and several of its members were executed after their cases had been heard by a Tribunal. It should also be emphasised that some of those arrested were either falsely implicated or had merely shown signs of ill-discipline rather than being state agents per se. Many of them were later released and apologies tendered for wrongful arrest.

Faced with this new situation and realising the dangers; and faced also with agents who refused to divulge strategic information though confronted with convincing prima facie evidence, excesses were committed.

These excesses are detailed in the Motsuenyane and Skweyiya Commission reports. From these reports and evidence led, it is clear that:

The ANC highly regrets the excesses that occurred. Further, we do acknowledge that the real threat we faced and the difficult condition under which we had to operate led to a drift in accountability and control away from established norms, resulting in situations in which some individuals within the Security Department started to behave as a law unto themselves.

Much has been said in public about the Morris Seabalo Centre, referred to also as Camp 32 or Quatro. The conditions in this detention centre, which are graphically illustrated in the commission reports, should be considered against the 'norm' which existed in general in the camps, given that conditions in any guerrilla military establishment are very difficult and abnormal.

The ANC also had to deal with instances of mutiny. Like all other armies, MK had rules about dealing with mutineers.

The most serious one broke out in Pango in 1984. Those responsible used machine-guns and other heavy weapons to attack the command of the camp, killing members of the command and other soldiers. A military tribunal was set up by the NEC and two groups of mutineers were tried, seven of whom were given the death penalty.

A number of other soldier were executed after they were tried and convicted of raping and murdering local villagers. The full list of people executed during the years of exile is attached to the submission.

After the Kabwe Conference, where the ANC's policy on the fair treatment of state agents was reaffirmed and clarified, ANC president Oliver Tambo decided to restructure the Security and Intelligence Department and bring in new personnel. A new leadership was appointed in 1987.

The leadership set about correcting many of the problems which remained within the department, and it actively and systematically investigated conditions in the detention centres and proposed corrective measures where problems remained.

The new leadership was also more rigorous in supervising the interrogation practices, and where violations were detected, remedial steps were immediately taken.

At the same time, the ANC's intelligence network had so advanced that it was possible to get information from within security police structures about some of their agents in our ranks. This made the work of the ANC and MDM much easier; it reinforced the drive against undue pressure to obtain information.

In so far as cases of abuse are concerned, the ANC concurs with the findings of the Motsuenyane Commission that, although there were a number of such excesses, it was never established that there was any systematic policy of abuse.

Instead the report illustrates many consistent efforts by the leadership to establish mechanisms of accountability and oversight. To the extent that the Motsuenyane Commission found that some detainees were maltreated and recommended that the ANC should apologise for this violation of their human rights, the ANC does so without qualification.

5.5 ANC MEMBERS WHO DIED IN EXILE

Over the years, the ANC has sought meticulously to record deaths in exile, irrespective of the causes. The rigours of underground existence have not made this an easy task.

After the unbanning of the ANC in 1990, a fulltime Bereaved Parents Committee was set up with the purpose of updating the list, making contacts with the families to inform them of the fate of their relatives.

No single death can be celebrated, whatever the circumstances. A single death is one too many; and the ANC would therefore wish to avoid comparing the number of deaths, among those who were or had been in exile, with the total number (amounting to tens of thousands) of those who were in its ranks over three decades.

5.6 THE UDF, MDM AND EXCESSES OF MASS REVOLT

Many participants in the mass uprisings of the 1980s did not fall within the formal structures and organisational discipline of the ANC, but believed they were acting with the broad parameters outlined by the ANC.

The UDF and MDM never shifted from their policy of non-violent forms of struggle.

However, given the situation in which they operated, it was impossible for the UDF/MDM to actually control all activities carried out in its name by people and groups who, while supporting the broad aims of these organisations, were not directly linked to the leadership and discipline of the organisations.

The use of extreme methods to neutralise the enemy, which included deterring and punishing collaborators, was perceived by many as an entirely justifiable act of self-defence. Such extreme methods, including the 'necklace' method, were never the policy of the ANC or UDF/MDM.

6. CHALLENGES FOR THE FUTURE

6.1 THE ANC's OWN CONDUCT

The mass of the people led by the liberation movement waged a just struggle against apartheid which was designated by the United Nations as a crime against humanity.

This struggle was no different in broad principle from other decolonisation struggles in other parts of the world.

However, we do acknowledge that the fact of a just struggle on its own does not render us or anyone else immune from judgement on humane or other conduct. We have set out the conditions under which any such violations may have occurred. But we emphasise that none of such violations arose out of official policy or were in any case sanctioned by the leadership. There are instances where we could have acted more firmly and speedily to prevent or stop abuses; and for that the ANC accepts collective responsibility.

6.2 REPARATIONS AND RESTITUTION

An important role of the TRC is to ensure that justice prevails to the maximum extent possible. Justice is not only punishment or retribution.

It must be appreciated that there needs to be restoration, restitution and/or reparation within the framework of such resources that South Africa can afford. Provision could be made for:

The list is not exhaustive.

6.3 RECONCILIATION AND NATION-BUILDING

Human rights violations originated with the system of colonialism and evolved over centuries. The doctrines of racial superiority, the pursuit of narrow interests and privileges for the white minority in general and Afrikaners in particular - all premised on the exclusion of the majority - "naturally" had to be buttressed by a repressive regime.

The system of apartheid and its violent consequences were systematic; they were deliberate; they were a matter of policy.

Therefore, the basic premise in correcting this historical injustice is for South Africans to pay allegiance to, to consolidate and defend, the democratic constitution and human rights culture that it espouses. It is for all citizens to promote and utilise to maximum effect the rights that we have attained, and ensure that open and accountable government becomes a matter of course in our body politic. It is for us to promote equal individual rights without regard to race, colour, religion, language and other differences; and at the same time ensure that equal collective rights pertaining to these issues are protected. And it is for us to work together to build a better life for all.

Combined with the work of the Truth and Reconciliation Commission, all these efforts will afford us the confidence to say: Never Again! We appreciate the fact that the Commission is pursuing its work without fear or favour; and we hope that at the end of this process, South Africans will be the wiser, and better able to march to the future with confidence in one another and in their capacity to create a prosperous, peaceful and just society in which any violation of human rights will be fading memories of a past gone by, never to return.

Preface

The African National Congress welcomes the establishment of the Commission for Truth and Reconciliation (TRC) and commits itself to assist in ensuring that the Commission realises its objectives.

The ANC campaigned actively for the TRC to be included in the Interim Constitution because we believe that such a Commission can play an important role in ensuring the psychological, intellectual and political well-being of the new democracy. Only by unveiling and acknowledging as far as possible the truth about the realities of one of the most odious and vicious political systems in twentieth century world politics can the millions whose basic human rights were legally trampled upon as a matter of course be accorded the kind of respect which they deserve, and the reparations which are possible. Only by confronting the past can there be genuine reconciliation, nation-building and unity in our country. Creating an official record of what happened could help in a cathartic way to heal South Africans psychologically. By knowing what happened and why it happened, South Africa will be better placed to ensure that the evil deeds of the past are never repeated.

The law defines the parameters within which the TRC is to pursue its investigations, hearings and recommendations. The ANC fully subscribes to this legal process. Our presentation therefore aims to relate directly to matters within the jurisdiction of the TRC, while at the same time providing a context in which points made in the submission can be more fully understood. In this sense therefore, this submission is neither a definitive nor comprehensive history of the period under review; it is rather a brief account addressing the specific issues relevant to the mandate of the TRC.

The ANC intends to make further submissions to the Commission as the need arises. ANC members will be forwarding amnesty applications to the Amnesty Committee, which will provide detailed information on the political objectives of relevant armed operations, the context in which such operations took place, and the lines of command governing operatives concerned.

The ANC respects the independence of the TRC and the integrity of the Commissioners, and will strive to ensure that the public shares this perspective. As an organisation, we commit ourselves to respect the final rulings of the TRC, confident that the objective will be to promote justice for all, as well as ensure socio-economic advancement, particularly to communities which have been systematically and unfairly disadvantaged in the past.

19th August, 1996

2. Introduction

As part of the process of the transformation of our country, the ANC had to consider its approach to the difficult but critically important question of what the new South Africa should do with those among our citizens who were involved in gross human rights violations during the struggle for our emancipation.

The choices we had to make can be stated in a simple and straightforward manner.

We could have decided to hold our own Nuremberg Trials.

We could have decided that all that should be done should be to forgive everything that has happened in the past.

We, however reached the conclusion that neither of these would be the correct decision to take.

In considering the correctness or otherwise of this conclusion, the point needs to be borne in mind that we are in transition from an apartheid to a democratic society.

This is not a single event but a protracted process.

What this speaks to is an unjust cause on one side and a just cause on the other.

Inherent to the system of white minority domination in this and all other countries where it occurred, was the philosophy and practice of the use of force to ensure the perpetuation of the system.

Force and violence by the dominant against the dominated, the contraposition of power to powerlessness, the attribution of mystical possibilities of retribution to the governors who can visit their wrath on the third and fourth generations of those who hate them, the suspension of all social norms, to enable the state and servants of the state to resort to the unbridled use of violence - all this, and more besides, sustains the continuity of colonial rule.

To maintain its internal integrity, coherence and rationale, this system could not but integrate in its world vision the concept of humans with a right to govern and sub-humans privileged to be governed.

Among other things, this paradigm allows those who enjoy the right to govern the ethical framework which permits them to use maximum force against any sub-human who would dare question his or her duty to accept the sacred obligation to respect the need to be governed.

The simultaneous and interdependent legitimisation of the two inherently anti-human concepts of racial superiority and the colonial state as the concentrated expression of the unlimited right to the use of force, of necessity and according to the inherent logic of the system of apartheid, produced the gross violations of human rights by the apartheid state which are the subject of part of the work of the Truth and Reconciliation Commission.

It was as a result of the correct understanding of the nature of the system of apartheid that the United Nations characterised the system itself, and not merely its logical results, as a Crime Against Humanity.

With regard to the narrower context within which the TRC is considering this matter, the theoretical foundation of the enquiry would be the matter we have referred to, the legitimisation of the use of force in general but especially against those who would dare challenge the system.

This has two consequences.

One of these is the elevation of the state organs of repression above all other state structures, their exemption from all norms of common law consistent with limitations on the use of force, the conferring of powers on individuals to mete out violence as they deem fit and the consequent brutalisation of such individuals so that the perpetration of violence becomes their second nature.

The second of these consequences is the demonising by the state of those it seeks to destroy and against whom therefore, it permits the maximum use of force.

This would cover both individuals and institutions or organisations. It is necessitated by the need to encase the perpetrators of violence in the psychological armour which enables them to be free of all restraint as they carry out their deadly work.

During the period since the end of the wars of independence, the racist state activated its capacity to use force in direct response to its perception of the threat posed by the forces of resistance to the survival of the system of white minority domination.

As the offensive for the destruction of this system, became more serious and sustained so the features we have described above, increasingly resorted to force and the demonising of the genuine opponents of the system.These features increasingly came to the fore and assumed precedence in state policy and practice.

In reality, it would not be difficult for the Commission to proceed from the theoretical base indicated above to construct a picture of the structures, systems and practices put in place by the apartheid regime to confront the challenge it faced, some of whose results will be subject to review as human rights violations and applications for amnesty.

This would put in their place and context issues such as:

We raise all these matters because they are directly relevant to the truth which the TRC is intended to discover and convey.

They are equally germane to the question of what will need to be done both now and in the aftermath of the work of the TRC, to ensure that our country and people are never again exposed to the threat of gross human rights violations.

Counterpoised to what we have been discussing is, of course, the movement for national liberation - the other antagonist in the conflict to which the forces of white minority rule responded in the manner described above.

National liberation movements are about the emancipation of people. They are formed to fight against oppression, for freedom. Where the oppressor must necessarily fight for the state control of the individual, the liberator struggles for the restoration of the democratic rights of the individual and the sovereignty of the nation.

These movements necessarily depend on the voluntary support of the population; they have no capacity to offer material rewards to their activists. They must therefore depend on the moral superiority of their cause, relying on this as the principal motive force which enables the movement to withstand all attempts at its suppression.

Respect for human life and the pursuit of happiness and liberty are fundamental to the philosophy and practice of any genuine national liberation movement.

Any objective study would show that the ANC, has evinced all the characteristics mentioned above, whatever the circumstances of the struggle.

In this context, it is necessary to focus attention on certain salient features which we believe are critical to the work of the TRC.

The first of these is that the ANC only decided to resort to organised violence once the oppressor regime had blocked all avenues of legal non-violent resistance.

The resort to violence was therefore a last rather than first resort, precisely because the protection of life itself is integral to the world view of the liberation movement and because the constituency of the liberation movement is, by definition, unarmed, as opposed to its opposition which, again by definition, is heavily armed.

The second of these considerations is that even when it used force, the liberation movement sought to do this in a limited way, in order to generate sufficient pressure on the oppressor regime and to create the conditions which would make a peaceful resolution of the conflict in the country possible.

When the strategic objective of the movement was stated as " the armed seizure of power by the people", the planning that took place to accomplish this objective was focussed on directing attacks against the repressive machinery of state, and not the civilian population which constituted the political base of the apartheid ruling group.

The third important point to make is that in the elaboration of its strategy, the liberation movement never sought to elevate the use of force above all other forms of resistance, but viewed the armed struggle as one of the "four pillars" of our global strategy.

Those four pillars were:

The result of this approach was that the armed struggle was never the sole nor the most important element in the strategy of the ANC.

Two consequences follow from this approach which, again, are relevant to the work of the TRC.

One of these is that the ANC always insisted on the primacy of politics over the use of force and therefore never accepted the notion that "power grows out of the barrel of a gun".

A result of this fundamental attitude was that the ANC took a principled stand against the use of terrorism as an element in its armed struggle.

It was for this reason that the ANC avoided what would have been very easy targets - namely, attacks on white civilians such as could have been carried out at schools, churches, on civilian aircraft and diplomatic missions, etc.

Another of these consequences is that the ANC trained all its combatants as armed political activists and not as mere soldiers whose only responsibility was to understand and carry out orders from a superior command.

This was very importance because the actions of each combatant had to be aimed at winning the support of the people, Combatants had to be able to operate in circumstances in which they were cut off, not only from their commanders but from the leadership of the movement in general, and in which the circumstances in which they found themselves would change rapidly, calling for prompt decision making.

Two other matters critical to the work of the TRC are, first, the concept of a just war and the place of the struggle for national liberation in international law, and secondly, the boundaries of acceptable conduct within an irregular war - guerilla warfare.

Let us deal with the first of these.

The constitutional settlement expressed in the 1910 Act of Union resulted in the formalisation of the definition of the African majority as the colonised, with the colonial master being the state that would be constituted by the combined Boer-British white population.

Great Britain granted independence to white colonists, while conceding the right and the power to these colonialists to treat the indigenous population as colonial subjects.

This resulted in the adoption of the phrase "colonialism of a special type" to describe the political and socio-economic realities which persisted until the formation of a democratically elected government in 1994.

During the course of this century, international law finally recognised the right of nations to self-determination, up to and including independence.

With this, came the acknowledgement of the right of any people denied the right to self-determination to engage in struggle, including armed rebellion, to gain that right.

This correct development constituted the legal recognition and codification of a reality which had been established, among other such outstanding historical events as the American and the Haitian Wars of Independence.

The majority of the people of our country, oppressed as a colonised people, had as equal a right to self-determination and the right to engage in struggle to gain this right as did other colonised people.

We, like these other peoples, were therefore justified in engaging in a just war.

This is the first and fundamental condition that must be acknowledged and recognised in the context of any assessment of our armed struggle for liberation, such as the TRC may have to make as it works to discharge its mandate.

We have already stated the second element that bears on this issue - that the ANC only opted to exercise its right to resort to a just war when the apartheid regime closed all avenues to a peaceful resolution of the injustice represented by colonialism of a special type.

The position stated in the Manifesto of Umkhonto we Sizwe published in 1961 was correct, that in these circumstances, we had no choice but to submit or fight.

We chose to fight rather than submit and by submitting, contribute to the perpetuation of the apartheid crime against humanity.

The oppressor regime will argue that the legally constituted South African apartheid state enjoyed the rights that accrue to all states and that rebellion against the established order had to be suppressed by all legal means available to the state.

The issue however turns on the fundamental consideration that no legitimacy can attach to a jurisprudence elaborated to enforce a crime against humanity, as no notion of illegality can attach to the fact of insurrection against a crime against humanity.

The naked reality is that our country would not be free today if we had depended for our emancipation on legal parliamentary opposition, including the white, tri-cameral and bantustan processes.

The second matter that requires consideration is, as we have said, the concept of an irregular war.

In the period since the outbreak of the Second World War, there are many examples of such wars with which the TRC could familiarise itself.

Any objective study of the military features of such wars would show certain extraordinary circumstances which the TRC would need to understand in order to order to deal with the expression of this phenomenon in our own country.

We believe that it is important for the TRC to understand these circumstances because, without such understanding, it would be impossible for the Commission to properly consider the conduct of the campaign of armed resistance to the system of apartheid.

In this context, there are four matters on which we will make detailed presentations.

The first of these is that as a movement we made a determined and sustained effort to ensure that we conducted an irregular war as far as possible according to international conventions governing the humanitarian conduct of warfare.

The second is that, nevertheless, cadres of the movement had to deal with varied objective and subjective situations that were presented to them by particular circumstances, without the possibility of abiding by stipulated rules and norms.

If any resultant behaviour was inconsistent with these rules and norms, at no stage could it ever be suggested that these cadres or the movement as a whole had thereby fundamentally betrayed the humane character of the movement for national liberation.

The third is that this movement had to protect itself from destruction and defeat by a determined enemy that was prepared to use any means to ensure the destruction and defeat of the movement for national liberation.

As a movement, we therefore had to take the necessary measures to defend ourselves. Many of these defensive measures had to be carried out in emergency conditions requiring a succession of immediate decisions, without which the movement itself might be destroyed.

The fourth consideration is use of the enemy of "false flag" - operations seemingly originating from within the movement, but, in reality, carried out on the instructions of the enemy's security forces in order to discredit the liberation movement.

In the end, the fundamental issue we would like to present to the TRC is that as a liberation movement, we engaged in a just war for national liberation.

The overwhelming majority of the actions carried out in the course of the just war of national liberation do not constitute "gross violations of human rights" as defined in the Act establishing and mandating the TRC.

Within this overall framework, there were particular actions carried out by cadres and supporters of our movement which we believe fall within the ambit of the work of the Commission, but must, nevertheless, be treated within the context we have described above.

The political and operational leadership of the movement accepts collective responsibility for all operations of its properly constituted offensive structures, including operations described in the preceding paragraph.

The ANC will therefore not be making any representation about those activities in its conduct of the struggle for national liberation which we deem to constitute legitimate actions carried out during a just and irregular war for national liberation.

With regard to those operations which we believe fall within the ambit of the work of the Commission, we will provide the Commission and the country with the necessary information, while encouraging those members and supporters of our movement where necessary to apply for amnesty.

In the context of what we have said above, it is necessary that we consider three questions relevant to the work of the Truth and Reconciliation Commission. These are:

National Reconciliation

The most important issue in this regard is that the grief of particular individuals, important as it is to the affected individuals and the nation, is relevant also to the extent that it contributes to the achievement of the larger goal of national reconciliation.

National reconciliation will only have meaning if it addresses the historic conflict in our country between black and white.

Through centuries of this conflict, the names of the players have changed continuously, regardless of their colour and the causes they served.

What never changed was the character of the conflict, which was between the white colonising forces and a black liberation movement, based on a social system which elevated the white at the expense of the black.

National reconciliation has to be between black and white.

Without transformation to end the disparities of privilege and deprivation which are the legacy we have inherited from our colonial and apartheid past, but which continue to define the present, national reconciliation is impossible.

Whichever way the TRC interprets its mandate, it cannot avoid the conclusion that the ghost that needs to be laid to rest is - the ending of the domination of the black by the white, in all spheres of social existence.

If our society does not achieve this, racial conflict will continue. The goal of national reconciliation will not be achieved.

Clearly, this objective cannot be achieved by the TRC alone.

It also emphasises the obligation that rests on the Commission to make its own recommendations as to what the larger and varied society from which it is drawn might do, to contribute to the realisation of the goal of national reconciliation.

Protection from Gross Violations of Human rights

Systematic violations of human rights are a manifestation of a social system, rather than the exceptional faults of particular individuals.

To ensure that our country and people are never again exposed to such systematic violations of human rights as occurred under apartheid, it is necessary that we construct a constitutional, political and socio-economic order which inherently protects human rights, and has the means to defend itself against any tendency to limit or violate those rights.

The mandate for the construction of such a system of course rests with bodies other than the TRC. As a movement we are convinced that these institutions are carrying out their mandate .

But we also believe that the TRC has an important role to play in helping to ensure that the specialised institutions established by the apartheid regime to carry out a campaign of repression are completely dismantled.

We refer here not to normal state organs such as the police, the Defence Force and the intelligence services, but to other clandestine structures established under the National Security Management System, some of which continued to operate as part of the "third force".

The exposure and destruction of these structures is important to ensure that they are stopped from actually or potentially engaging in any acts of destabilisation.

This is particularly important in light of the fact that persons who belong to these structures have been trained and motivated as anti-democratic operatives and, in many instances, will not have changed their ideological colours.

It is also important that the nation as a whole should be familiar with this machinery as part of the process of raising the level of national vigilance so that it is difficult for any government in future to create similar structures for use against the people of our country.

Reparations

A crime against humanity, it is inevitable that the apartheid system will have had a detrimental effect on all black people in our country.

In this sense, all the oppressed people could correctly assert that they are entitled to reparation for harm caused to them by the apartheid system.

To come more narrowly to the issue of reparations as it relates to the TRC, it is important to bear in mind that millions of people were involved in the struggle for national liberation, whatever the particular form of their engagement.

To defeat this struggle, the apartheid regime carried out a widespread campaign of terror which affected hundreds of thousands of people to one degree or another.

What these masses sought by their engagement in struggle was not personal reward but the emancipation or our country.

Their greatest reward is the victory of the democratic cause and the reconstruction and development of the country in a manner that radically improves the quality of life of the people in as speedy a manner as possible.

The TRC will therefore have to look for ways and means in which to extend reparations to the people as a whole. A lot of creative thinking will have to go into this so that steps are taken which will inspire the people to accept that such reparation as is due is made.

Where reparations are made to individuals, whatever the form of such reparation, the point will have to be taken into account that the numbers of people entitled to such reparation are larger than anyone of us can imagine.

As the principles of equity will have to be observed in awarding these reparations, care should be taken that the new society does not assume obligations it cannot meet.

The Role of the Individual

Many individuals have appeared and will appear before the TRC both to apply for amnesty and to tell the truth about violations of human rights, as perpetrators and victims.

However we should bear in mind that any process which visualises all individual victims of the gross violation of human rights appearing before the Commission would have to take into account that this would require that the TRC sit for many years.

Consideration should therefore be given to how the hundreds of thousands or millions of affected individuals and families might be recognised, and how to draw the necessary lessons and examples from a wide variety of individual experiences, without it being necessary that everyone appears before the Commission.

We should not lose sight of the fact that one of the central objectives of the TRC is the achievement of national reconciliation.

An element of this is described as personal catharsis, and this should reinforce the achievement of the broader national goal which relates to the building of a democratic, peaceful and non-racial South Africa.

It is also important that, within its lifetime, the Commission should complete the amnesty process, to ensure that the democratic state is not left with the responsibility of instituting criminal investigations and the possible prosecution of people for actions that took place during the period covered in the mandate of the TRC.

If this were to happen to any significant degree, it would mean that the TRC had failed in its mission and had, by that failure, condemned our country to continuing conflict about events of the past rather than the reconciliation sought from the work of the TRC.

The ANC is ready to assist in the gathering of such information from individuals and families as might be relevant to the work of the TRC. We would do this to help ensure that the TRC process is as inclusive as possible.

At the same time we believe that it is important that the individual presentations should assist in dealing with the fundamental question of conflict among organised forces and between social systems, which is what the TRC must address if it is to discharge its responsibility to the nation.

Conclusion

The ANC is committed to doing everything in its power to help the TRC and the nation to know as much as is possible about the events of the period the TRC is mandated to investigate.

We believe that the TRC should conclude its work as quickly as possible so that we do indeed let bygones be bygones and allow the nation to forgive a past it nevertheless dare not forget.

3. The Historical and International Context

The approach of this submission is to identify the broad contours of gross violations of human rights during the apartheid era, with a particular focus on the period 1960 to 1993. Within this context, the concomitant responses of the ANC as the leading force in the struggle for democracy, freedom and human rights in South Africa will be explained. The forms of struggle embarked upon by the ANC were in response to the policies, laws and activities of the apartheid regime and at the same had an impact on them. In the final analysis, the reaction of a people to their subjugation will take forms dictated to by the conditions of that subjugation

The thirty years beginning with the Sharpeville shootings in March 1960 (followed by the banning of the ANC and other organisations and the State of Emergency) up to the first democratic elections in April 1994, constitute an identifiable historical period. It was during these three decades that apartheid policies were most expansively and aggressively pursued; that the South African state made a decisive shift towards more overtly authoritarian forms of social control and political repression; and that massive transgressions of basic human rights in South Africa became commonplace, bringing international notoriety to apartheid South Africa.

3.1 Colonialism, dispossession and segregation

It is necessary to emphasise that formal apartheid was preceded by a sustained period of dispossession, denial and subordination. The process of colonial conquest in South Africa lasted for over two centuries; from the destruction of Khoisan communities in the seventeenth and eighteenth centuries, through the bloody century of warfare in the present day Eastern Cape Province, to the military defeats further north in the late nineteenth century. A further crushing assertion of imperial might occurred in 1899-1902 with the subjugation of the Boer republics by British armies.

Modern South Africa was built on the foundations of conquered territories, captive peoples, scorched earth and shattered sovereignties. The "colour bar constitution" of 1910, which brought the Union of South Africa into existence, affirmed white interests at the expense of the black majority. It not only took away some of the rights enjoyed by black voters in the Cape, but also denied any political rights to black people in the other colonies, thus establishing the framework for all-pervasive discrimination and conflict in later years. Government legislated a distinctive form of industrialisation based upon the cheap labour of a disenfranchised majority. Segregation policies divided access to housing, jobs, education and welfare along racial lines.

The 1948 white election saw the accession to power of the National Party. The apartheid policies of the new regime codified, intensified and extended existing disparities between "racial groups" within the South African population. [Further details appear in Section 4.1 below.]

Between 1948 and 1960 curbs upon freedom of movement and on where people might live and work were sharply intensified; racial classification provided the basis for the provision of separate facilities in almost every walk of life; the permissible forms of political behaviour were narrowed. Many political and trade union leaders were banned and/or banished to remote areas under terms of the Suppression of Communism Act of 1950, which denied them recourse to the courts. The arrest of 156 leaders of the Congress Alliance and the protracted Treason Trial was a further instance of the attempts by the state to outlaw the legitimate political demands of the disenfranchised majority.

But when one compares the 1950s with what followed, it is clear that in the 1960s there was a qualitative shift towards more repressive policies and practices by the National Party government. In the political arena, these policies and practices significantly intensified violations of basic human rights, abrogating the rule of law, criminalising a wide range of political activities, and vastly increasing the coercive powers of the state. At the same time, the overall administration of apartheid became increasingly disruptive of people's lives and more devastating in its effects. [For details see sections 4.1 to 4.3 below.]

The specificity of the 1960s is important, for it was also in this decade that the African National Congress was proscribed by the government and consequently turned to underground forms of organisation, and adopted the armed struggle. This response by the ANC is dealt with more fully in Section 5.1 below. For the moment, it is useful to view the early history of the ANC within the context of the South Africa sketched above.

3.2 The history of the African National Congress to 1960

Founded in 1912, the ANC is the oldest national political organisation in South Africa. From the start the ANC's core principles were to promote unity, counter racism and work towards equal rights for all South Africans.

Its formation was a direct response to the 1910 Act of Union which excluded black South Africans from citizenship rights, and constitutionally entrenched minority rule. At the time one of the early activists warned with great foresight:

"Equal Rights ... is the motto that will yet float at the masthead of the new ship of state which has been launched under the Union, and no other will be permanently substituted while there is one black or coloured man of any consequence or self-respect in the country, or any white man who respects the traditions of free government - so help us God."
Izwi Labantu, 16/02/1909; quoted in A. Odendaal, Vukani Bantu! The Beginnings of Black Protest Politics in South Africa to 1910 (David Phillip, Cape Town, 1984)

To protect the interests of the disenfranchised in the new South Africa of that time, the ANC formed itself as a "Native Parliament". It consistently tried to promote the interests of Africans to oppose "by just means" the colour bar, and to call for "equitable representation" in Parliament and the extension of political and civil rights regardless of race. In a real sense its formation sowed the seeds which reached fruition with the creation of a united South African nation in 1994.

In the early decades of its existence, the ANC was conspicuously committed to act within the law; its methods strictly constitutional - petitions, legal suits, and deputations - even though its representations consistently fell on deaf ears.

Influenced by the international struggle against fascism, the growth of anti-colonial movements in other countries, the formation of the United Nations Organisation and both the intransigence of those in power in South Africa and a growing mood of resistance amongst the black majority, the ANC became more assertive in its demands from the Second World War onwards. The ANC's historic Africans' Claims document of 1943 underlined support for the Atlantic Charter adopted by the Allies as a guide to the creation of a new post-war world order and included a Bill of Rights for South Africa which would ensure full citizenship rights for all - the first such document in our country's history.

In 1949 the ANC adopted a Programme of Action which sought to realise the above objectives, using new methods of direct action such as boycotts, strikes and civil disobedience if necessary. In the Defiance Campaign of 1952 over 8,000 people were arrested for the deliberate contravention of apartheid laws. The Defiance Campaign won mass popular support for the movement and was followed by other protest campaigns in the 1950s - against Bantu Education, against the introduction of passes for women, against farm labour conditions, and against the destruction of Sophiatown.

The militancy that started to take root in this decade, was essentially in response to intensified oppression and repression introduced by the NP government. Instructively, the decade opened with the killing by police of 18 Africans on 1 May 1950. This trend was to continue, culminating in the 1960 Sharpeville massacre.

It is appropriate at this juncture to refer to an observation by former ANC President Oliver Tambo in 1983, which captures not only the essence of this period, but also brings out in bold relief the paradigm of debates in later years and even today:

"The ANC was non-violent for a whole decade in the face of violence against African civilians...No one refers to Africans as civilians and they have been victims of shootings all the time. Even children - they have been killed in the hundreds. Yet the word has not been used in all these years....But implicit in the practice of the South African regime is that when you shoot an African, you are not killing a civilian".

In 1955, the ANC and its allies convened the Congress of the People, which adopted the Freedom Charter - a powerful call for equal political and civil rights, as well as basic economic and social welfare provisions. Once again the ANC was the first to outline a clear alternative programme, based on non-racialism and universally accepted human rights principles, in opposition to the short-sighted and discriminatory policies of the National Party government.

Despite the new militancy of the 1950s, the ANC remained committed to non-violent, legal forms of struggle. Its dedication to political reform by persuasion rather than by violent means was most memorably, stated by Chief Albert Luthuli in 1952:

"In so far as gaining citizenship rights and opportunities for the unfettered development of the African people, who will deny that thirty years of my life have been spent knocking in vain, patiently and modestly at a closed and barred door?"

Five years later, when he wrote to Prime Minister Strijdom, urging the calling of "a multi-racial convention to seek a solution to our pressing national problems", he reiterated that the ANC

"has always sought to achieve its objectives by using non-violent methods. In its most militant activities it has never used nor attempted to use physical force. It has used non-violent means and ways recognised as legitimate in the civilised world, especially in the case of a people, such as we are, who find themselves denied all effective constitutional means of voicing themselves".

If it is to be properly understood, the pattern of South African politics between 1960 and 1993, including the massive violations of human rights by the apartheid regime and the forms of struggle adopted by the liberation movement, need to be located within this historical context.

3.3 Just struggle in the international context

"Those who make peaceful change impossible make violent change inevitable."
- John F. Kennedy.

The African National Congress was internationally recognised as a liberation movement. It was accorded observer status by most international organisations including the United Nations, the Organisation of African Unity and the Non-Aligned Movement.

The traditional legal view of wars of national liberation was that they constitute a category of internal wars and as such are not subject to international legal regulation. However, from the early 1960s in a number of international legal fora, but more significantly in the United Nations General Assembly, a growing majority supported the view that struggles against colonialism and other forms of oppression in pursuance of the right to self-determination had an international character. The point of departure for most ex-colonial states in the UN was their recognition that this principle imposed an obligation on the colonising power, and established the right of all peoples to the exercise of self-determination. This trend culminated in General Assembly Resolution 1514(XV) of 1960 containing the Declaration on the Granting of Independence to Colonial Countries and Peoples. However, the most important achievement in this respect is the Declaration on Principles of International Law Concerning Friendly Relations, adopted by the General Assembly Resolution 2625 (XXV) in 1970. This Declaration which was adopted in the General Assembly by acclamation, i.e. unanimously without a dissenting vote, gave universal recognition to the legal and binding nature of the principle of self-determination.

In view of these developments, wars of national liberation could no longer be considered as internal wars since they were now regulated by international law. As concerns the legality of the use of force in the context of self-determination, the Declaration provides that:

"Every State has the duty to refrain from any forcible action which deprives people... of their right to self-determination, freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such people are entitled to seek and receive support in accordance with the purposes and principles of the Charter."

This provision had significant implications for cases of armed resistance.

Firstly, it clearly stated that the "forcible action" or use of force which is prohibited is that emanating from a government in denial of the right to self-determination.

Secondly, armed resistance to forcible denial of self-determination - by imposing or maintaining alien domination by force - is legitimate according to the Declaration. In other words, liberation movements have the right to go to war under the Charter.

Thirdly, the right of these movements to seek and receive support and assistance necessarily implies that they have a locus standi in international law and that third states can assist or even recognise them without this act constituting an intervention in the domestic affairs of the oppressor state.

Although South Africa was considered an independent state and not a colonial power in the strict sense of the word, it was argued and accepted in the United Nations that the self-determination of the South African people had not taken place because of their subjection to legalised racial discrimination by the government through the internal policy of apartheid. The ANC, frustrated in its efforts to achieve democracy peacefully, legitimately took up arms against the apartheid government.

Thus, it would be morally wrong and legally incorrect, for instance, to equate apartheid with the resistance against it. While the latter was rooted in the principles of human dignity and human rights, the former was an affront to humanity itself.

No issue before the United Nations has been more enduring than the discriminatory treatment officially accorded to black people in South Africa; in 1972 the Special Political Committee of the General Assembly devoted no fewer than 19 of its total 51 meetings to discussing apartheid. Between 1946-1948, the General Assembly passed no fewer than 215 resolutions dealing principally or exclusively with South Africa.

In 1965 the General Assembly also adopted the International Convention on the Elimination of All Forms of Racial Discrimination. It declared that the doctrine of superiority based on racial discrimination was morally condemnable, socially unjust and dangerous. In the following year the Assembly took an additional step in its campaign against apartheid, when it affirmed

"its recognition of the legitimacy of the struggle of the people of South Africa for human rights and fundamental freedoms irrespective of race, colour or creed."

At its twenty-fifth and twenty-sixth sessions the General Assembly adopted a series of Resolutions dealing with apartheid. Most important among the Resolutions was Resolution 2671 of 1970. Apart from declaring that the policies of apartheid were a negation of the Charter of the United Nations and constituted a crime against humanity, this resolution reaffirmed recognition of the legitimacy of the struggle of the people of South Africa to eliminate, by all the means at their disposal, apartheid and racial discrimination and to attain majority rule in the county as a whole, based on universal suffrage.

In 1973, the UN adopted the International Convention on the Suppression and Punishment of the Crime of Apartheid, which also called on State Parties to adopt legislative, judicial and administrative measures to prosecute, bring to trial and punish persons responsible for the crime of apartheid.

As early as 1972 General Assembly Resolution 2852(XXV) on Respect for Human Rights in Armed Conflicts had reaffirmed that:

"Persons participating in resistance movements and freedom fighters in Southern Africa and in territories under colonial and alien domination and foreign occupation who are struggling for their liberation and self-determination should, in case of arrest, be treated as prisoners of war in accordance with the principles of the Hague Conventions of 1907 and the Geneva Conventions of 1949."

This was subsequently formalised by Protocol I of 1977 to the Geneva Conventions of 1949 which applied the totality of the Geneva Conventions of 1949 to wars of national liberation, which was signed by the ANC in 1980. The implication of this was that members of the liberation movements were protected from South African criminal law except where their activities could be characterised as war crimes or crimes against humanity such as genocide. The South African government consistently refused to ratify this Protocol. [Refer to Section 3.5 on the international status of the apartheid regime .]

3.4 Apartheid and human rights

Apartheid was founded on, and represented an intensification of, the colonial system of subjugation of Africans, Coloureds and Indians. The leadership of the National Party based their principles and programmes on doctrines of racial superiority, some of them derived from Nazism, an ideology with which they had identified through the Ossewa Brandwag and other activities during the Second World War. From the crop of OB leaders and operatives emerged political leaders, judges and other exalted persons of the apartheid era. The statement by former Prime Minister BJ Vorster that what in Germany was National Socialism was known as Christian Nationalism in South Africa, succinctly captures the NP's admiration of Nazism.

At the root of their doctrine was the single-minded pursuit of Afrikaner ethnic and white racial dominance, which placed these groups' rights and privileges above everything else. As such, individual interests and rights, let alone those of black people, were to be subsumed under this group mission. The constitutional order was adjusted and readjusted over the decades to pursue this objective: and even today, pursuit of exclusive group interests as pitted against the individual rights of all citizens, constitutes one of the real tensions in the country's body politic.

To entrench and defend such Afrikaner dominance, the NP set about transforming the judiciary, the army, the police, intelligence services, academia, the civil service, the mass media, economic and labour relations and parastatals. A web of secret organisations, primary among which was the all-male, all-Afrikaner Broederbond, was used to maintain a firm grip on the levers of political and economic power.

Apartheid oppression and repression was therefore not an aberration of a well-intentioned undertaking that went horribly wrong. Neither was it, as we were later told, an attempt to stave off the "evil of communism". Its ideological underpinning and the programmes set in motion constituted a deliberate and systematic mission of a ruling clique that saw itself as the champion of a "super-race".

In order to maintain and reproduce a political and social order which is premised upon large-scale denial of human rights, far-reaching and vicious criminal, security and penal codes were necessary. Those who sought to defend the system increasingly relied upon intimidation, coercion and violence to curb and eliminate the opposition that apartheid inevitably engendered. The spectrum of intimidation, coercion and violence is one with which the Truth and Reconciliation Commission is becoming familiar in all its gradations.

At the legal end of the spectrum are Acts of Parliament which defined large areas of political activism as sabotage and terrorism; placed the onus of proof on the accused; made offences retrospective; imposed harsh minimum sentences; equipped the police with sweeping powers and simultaneously subverted an already compromised judicial system. From there, the spectrum extends through psychological and physical abuse of detainees, including torture and death, the extra-legal harassment of individuals whose activities remained legal even within the context of the security laws, the sordid repertoire of "dirty tricks" conducted by statutory and clandestine organs of state, and ultimately to kidnappings, bombings, massacres and murders by hit-squads and "third force" agencies. An attempt will be made below to more systematically detail the repressive framework created under apartheid, and show how this changed in response to changing circumstances during the period under review.

3.5 Apartheid violations of human rights in an international context

The apartheid regime persistently tried to hide behind the idea that what it did to its population was simply a matter of domestic concern, and not the business of the international community. When this failed, the regime adopted a new approach, arguing that the legal and moral basis for international action did not exist and that the description of the apartheid regime as a pariah, an outcast, or an international outlaw was simply the result of a mischievous and malicious campaign by the Third World and its Communist allies.

In particular, the international community recognised that the workings of apartheid - killings, torture, mass removals, violation of basic rights such as freedom of movement, racial discrimination etc.- did not constitute a mere wrong but a crime against humanity, first identified at the Nuremberg Trials and subsequently applied to the apartheid structure under numerous resolutions of the General Assembly and the Security Council, forming part of the practice under international law which is one element of the development of international rules.

Although the apartheid regime was in de facto control of South Africa, it acted without a proper mandate. The defective or illegitimate status of the South Africa regime did not mean, however, that the regime was not accountable in international law for its violent and racist policies, for as the international Court has said:

"Physical control of territory, and not sovereignty or legitimacy is the basis of State liability affecting other States."

The role of the Security Council in taking decisions binding on the international community was vital, in a legal sense. Since 1962, by increasing majorities, the General Assembly urged states to impose sanctions of various kinds and, since 1965, comprehensive sanctions. The Security Council, through the persistent use of the veto by certain permanent members, thwarted the opinion of the international community that any form of collaboration was, not only morally wrong because it provided aid and succour to apartheid, but was also contrary to the basic rules of international law .

Notwithstanding this, the Security Council unanimously passed resolution 556 in 1984, which encapsulated the legal and political basis for the illegitimacy of the apartheid regime. This resolution reiterated its condemnation of apartheid policy as a crime against humanity; demanded the dismantling of the bantustans, and demanded the immediate eradication of apartheid and the taking of the necessary steps towards the full exercise of the right to self-determination in an unfragmented South Africa.

In 1974 the General Assembly refused to accept the credentials of the South African delegation, in effect barring South Africa from participating in its work. No other state had faced this humiliation, including expulsion or suspension from nearly every inter-governmental and non-governmental international organisation. The reason for such disengagement from normal relations turned on the nature of the regime.

For not only was apartheid an egregious form of gross, flagrant and systematic violation of human rights, it also deprived the majority of the right to self-determination.

An examination of relevant international conventions, declarations, resolutions, judicial decisions and the practice of the United Nations and its organs, and the practice of regional organisations and states, yields affirmation of the following propositions of international law in relation to the apartheid regime:

International law was part of the armoury of opposition to apartheid. It validated activities and actions against apartheid and distinguished the correctness of the actions of resistance from the illegality of the regime.

While the ANC from its inception in 1912 articulated human rights for all South Africans in line with internationally accepted democratic norms, the trend on the part of white minority governments was towards a restriction of human rights.

Moreover, unlike the racist state, the ANC took special care after being compelled to take up arms in the 1960s to ensure that its conduct was in compliance with international conventions in situations of armed conflict. It argued, and this was widely accepted internationally, that the struggle against apartheid and white minority rule was comparable to other international struggles against tyranny, for example, the American War of Independence, the war against Nazism, and the numerous anti-colonial struggles in the 20th century.

International precedents support the notion that no equivalence can be made between the defensive violence of the disenfranchised majority and the institutional and overt or covert violence perpetrated in the name of apartheid; in everyday parlance, the violence of a victim fighting back cannot be equated with the malevolent aggression of the rapist.

4. The National Party, Apartheid and the Anatomy of Repression in South Africa, 1948-1994

Apartheid was premised on discrimination, denial and segregation in every area of South African life - social, political and economic. It grossly violated human rights in numerous ways, and on different levels. As time passed the system of human rights violations mutated into different forms, while retaining its essentially discriminatory and violent features. Below we try to highlight laws, policies, actions and the changing nature of apartheid, and show how these contributed to the gross violation of human rights during the period under review by the Commission.

4.1 The post-1948 legislative programme of apartheid

What the National Party did after 1948 was to make colonial segregation and discrimination more systematic, and more far-reaching, and more rigorously implemented and policed.

Thus the early years of National Party rule saw the passage of bedrock segregationist and discriminatory laws, including:

Other early apartheid legislation introduced sharp new curbs over the urban residential rights and rights as urban workers of the African population:

These are just a few examples of the hundreds of laws that were put on the statute book to control the lives of black South Africans from the cradle to the grave. All these unjust laws also made it impossible to use the courts for redress against violations of human rights. Not infrequently, the whites-only parliament speedily passed amendments and new legislation to close legal loopholes, which further undermined human rights. This combination of social and repressive laws fitted the overall political and economic objectives of the apartheid government - taken together they reflected, cold deliberate, planning and calculation.

4.2 The repressive apartheid security state, 1960-1974

Yet, drastic as was the legislation of the 1950s, it is abundantly clear that in the 1960s the government became even more ruthlessly authoritarian. A battery of new laws were passed, transgressions of human rights became more blatant, and efforts at social engineering intensified dramatically, causing considerable social dislocation.

Central to the new authoritarianism were sweeping restrictions on political activity; increased the powers of the police, and further subversion of the independence of the courts; and sweeping provisions for detention without trial, creating conditions in which the use of torture during interrogation became widespread. Central to this shift was a barrage of security legislation, including:

The pattern of this security legislation is clear. It curtailed the sphere of legitimate political opposition by enlarging the definition of "criminal" offences, which was in some instances applied retrospectively, and presumed the accused guilty until proven innocent. It expanded the powers of police and jailers. It violated the normal tenets of the rule of law by its widespread abrogation of individual rights and denial of due process. The security legislation increased the coercive powers of the state in the maintenance of what was a fundamentally unjust social and political order.

More than this: in permitting detention without trial and solitary confinement for indefinite periods, the security laws drew new zones of penal licence which rapidly became blurred. From its inception during the early 1960s, security legislation and its implementation have generated widespread allegations of physical and mental abuse of people held in detention. Individual officers abused their powers of interrogation; interrogation became torture; torture became routine. The methods of torture, both physical and psychological, were honed to a fine art - not as an aberration by a few sadistic individuals, but as a result of training and indoctrination of police officers, both inside the country and with the help of apartheid allies such as the colonial fascists in Mozambique and Angola, and the colonial administration in Algeria and elsewhere. Certain police officers who were torturers in the 1960s later rose to senior positions in the force, indicative of the degree of legitimacy accorded by the apartheid regime to this behaviour.

Survivors of torture continue to suffer for many years afterwards: as one victim put it recently,

"Twenty-six years have passed since I was among a group of seven women subjected to torture by mind breaking by the apartheid security police, and yet I often find myself back in the dungeon of solitary confinement ready to take (my) own life for no explicable reason. This all happens without any conscious thought on my part. I hate it when my mind brings those terrifying memories - but my mind just does it for me, it was orchestrated to destroy me..."

Many women detainees suffered sexual abuse and even rape at the hands of their captors.

A grim mountain of depositions and court evidence stands as record to abuses suffered by generations of detainees: at its apex are over sixty deaths - from Ngudle and Saloojee, to Timol, Haron, Biko, Aggett, Malatji and all the others.

The torment of prisoners and detainees did not end there: their families and friends were also frequently subjected to sustained harassment, surveillance, and mental torment which in some cases proved too much: there have been many tragic cases of spouses and relatives of prisoners breaking under this kind of pressure. Children of women detainees and prisoners in particular often suffered most: while some swelled the ranks of the liberation movement, others were thrown onto the streets to fend for themselves.

At the same time, the courts were obliged by means of law and other pressures to impose heavy sentences - at times on false allegations, as in the case of Vuyisile Mini, Wilson Khayingo and Zinakile Mkhaba, who were members of the Eastern Cape Regional Command of MK. They were hanged after being found guilty of sabotage and the murder of a member of MK who had turned state witness. Subsequently three other men - one of whom was found guilty of the actual execution - were also condemned to death for this murder.

4.3 The institutional violence and social consequences of apartheid

While the Truth and Reconciliation Commission is tasked with identifying the harshest violations of human rights during the apartheid years, it cannot remove the specific cases it will be dealing with from this broader context where the dispossessed and disenfranchised masses faced violence, discrimination and the violation of their human rights on a daily basis during the colonial and apartheid eras. As the ANC argued in 1969:

"South Africa was conquered by force and is today ruled by force ... When the gun is not in use, legal and administrative terror, fear, social and economic pressure, complacency and confusion generated by propaganda and "education" are the devices brought into play. (...) Behind these devices hovers force. Whether in reserve or in actual employment, force is ever present and this has been so since the white man came to Africa."

During the 1960s, concurrent with the creation of the new "security state" and new legislation, the apartheid rulers embarked on radical new forms of social engineering designed to defend and entrench white minority rule, which had far-reaching consequences. A social order already distinctive for deep-seated, legalised inequalities premised upon racial classification now experienced new levels of what has been characterised in authoritarian societies as "bureaucratic terrorism". In essence, bureaucratic terror in South Africa involved the use of state power against individuals and groups who are already economically subordinate, socially discriminated against, and politically without rights. Instances of the phenomenon included:

The implementation of basic apartheid measures (such as pass laws, influx control, urban areas restrictions, job reservation, separate amenities, and so on) meant that basic "first generation" human rights - such as the franchise, civil equality, freedom of movement or association - were denied systematically and massively. The brute bureaucratic reality of the apartheid era - an unthinking, everyday denial to individuals of their basic human dignity - is directly analogous to Hannah Arendt's famous characterisation of the "banality of evil" in Nazi Germany.

Secondly, the social order underpinned by apartheid also rode roughshod over "second generation" human rights, such as the right to education, health care, housing, security and social welfare. The statistics of racially inscribed inequalities under apartheid are too well known to require detailed recapitulation: whether the measure is infant mortality, nutritional intake, life expectancy, literacy, domestic or per capita earnings, employment levels or property ownership, the findings are the same. Academic studies have shown that according to internationally accepted measurements South Africa has the unenviable distinction of having the most unequal distribution of income for any economy for which data is available. Apartheid and the callous denial of basic rights that went with it are directly responsible for the fact that as much as half of South Africa's population lives below the "least generously drawn poverty line".

The cumulative impact of apartheid laws and government actions between 1948 and the late 1960s was immense. They allocated political, social, economic and cultural rights to individuals on the basis of their race. They inhibited such basic rights as freedom of movement, freedom of expression, freedom of assembly and freedom of association for millions of South Africans - and they did so, ironically, at the precise juncture that these and related rights were recognised as basic human rights across the globe. The Universal Declaration of Human Rights was adopted in the same year that the National Party won the whites-only general election on a platform embracing apartheid and swart gevaar.

In the final analysis all this rested on entrenching the dominance of, and accruing privileges for, the white minority in general and Afrikaners in particular. The group, and the group only, mattered: to improve its opulence, promote its languages, cultures, education and other amenities, at the expense of the black majority. In the inverse, the warping of white children's minds, their psychological and physical brutalisation in the security forces, the fear psychosis and denial of independent thought within the white community - all these mattered not, as long as the National Party elite consolidated its power.

4.4 The judiciary and other forms of repression

Whole sectors of South African society - the law courts, churches, media, education, business, sports and cultural sectors - both actively and indirectly reinforced apartheid exclusion, discrimination and the violation of human rights. It is not possible to deal in a comprehensive way with the different forms of the institutionalised gross denial of human rights under apartheid here, but the shameful behaviour of the medical establishment in the events surrounding the death of Steve Biko, and the distortion of justice which systematically occurred in the South African law courts are just two examples.

Tens of thousands of black South Africans were funnelled through the apartheid courts, usually without legal representation and with racially and ideologically biased white, male judges and magistrates in charge, and turned into criminals in the process, compounding racial polarisation.

At the highest level there was clear support for apartheid, as many judges were political appointees. As the National Association of Democratic Lawyers have pointed out, selected judges were in many cases put in charge of political trials and were responsible for the judicial murder of people fighting against apartheid. In many cases these judges allowed evidence that was extracted under torture or duress. Judges condoned the barbaric practises of the apartheid security police and gave apartheid terrorism laws a veneer of legal respectability. Together with magistrates and prosecutors they were quick to defend or cover up police brutality and thereby facilitate the work of the apartheid security system, for example in routinely finding (as in the case of Joseph Mdluli) that people who had undoubtedly been tortured and injured had died after "falling off a chair" or "slipping down a staircase".

Judicial commissions produced ideologically oriented reports which promoted the goals of the apartheid state or covered up its culpability in cases of gross human rights violations, e.g. the Schlebush Commission of the 1970s, the Kannemeyer Commission investigating the Uitenhage massacre in 1985, and the Harms Commission. Law societies and bar councils, which are supposed to be the watchdogs of law and legal standards, struck from the roll anti-apartheid activists convicted of crimes against the apartheid state, including Bram Fischer, Ntobeko Maqubela, Kader Hassim, M.D. Naidoo and Rowley Arenstein. In the 1980s, in particular, innocent people were charged with "public violence", when in fact the violence arose from the police and not the public (as in the infamous Trojan Horse case in Cape Town).

In all of the state institutions referred to above, there were government appointees who, quite clearly, were carefully chosen to advance the cause of apartheid. If they were involved in education, they religiously invoked Bantu education, which subsequently led to the eruption in black schools in 1976. The Dutch Reformed Church, which provided "biblical" justification for apartheid, became known as the "National Party at prayer". Courts of law meted out severe punishments to opponents of apartheid and proponents of democracy.

What chance would a black person have of acquittal if, for instance, he or she were an anti-apartheid activist appearing before Justice HHW de Villiers? This judge, who retired in 1961, wrote a book on the Rivonia trial. This is how he characterised the African population of South Africa:

"The Bantu is still at the stage where the Roman people were at the time of the fall of the Roman Empire when the populus shouted "Give us bread and the Circus!" (...) The primitive Bantu is still a killer. The Zulu war cry "bulala!" can still stir them into a frenzy of uncontrolled aggression and murder. They can so easily be persuaded to kill River and Paarl killings. One must always remember we have to do with a primitive people; even higher education does not eradicate their superstitious beliefs in a generation or two."

The judge's book was an argument for the death penalty in the Rivonia trial. Clearly, had he been on the bench, he would have sentenced President Mandela and his co-accused to death.

The catalogue of legal and institutional discrimination that occurred under apartheid goes on and on and needs acknowledgment if a human rights culture is to flourish in the new South African legal system. The ANC therefore supports the call for judges, magistrates and prosecutors involved in gross travesties of justice to appear before the TRC.

4.5 Forced removals and forced incorporation: A case study of the further violation of black people's property rights and the institutional violence of apartheid

Grand apartheid had at its core a vision of a South Africa that belonged to whites and where black people either lived in bantustans or were temporary residents in urban areas, while working for whites.

Implementing this vision was a decades-long process that entailed large population removals as part of an elaborate social and geographical engineering exercise. The Surplus People Project, which has produced the most authoritative documentation of the history and scale of forced removals estimated that between 1960 and 1982 over 3.5 million South Africans were moved as part of this policy. Tens of thousands of other people lived for many years under constant threat of losing their homes, while yet others lost their South African citizenship as boundaries were redrawn to incorporate them into homelands that were earmarked for "independence."

These processes resulted in untold human suffering and misery. Communities were broken up; families were separated and lost their homes and productive resources such as livestock, trees and farming implements. In many cases people were not compensated at all. Resistance to forced removals was met with severe repression by the state and resulted in people being killed and jailed.

The social dislocation caused by forced removals and the destruction of viable and cohesive communities has arguably been one of the most devastating consequences of apartheid.

In most cases communities were put in places far from their original homes and places of work. Jobs were lost, or people forced to become migrant workers in order to support their families. Conditions in resettlement camps were appalling. Often, people were dumped with little more than tents, tin toilets and trucked-in water. Poverty levels increased dramatically in these areas.

As a result of forced removal, many children and old people died from diseases related to malnutrition and poor living conditions.

The policy of forced removals was met with fierce resistance by the affected communities. In many cases long and expensive legal battles were fought. Most of these were lost as the legislation in terms of which removals took place was authoritarian and relied on the powers of administrative decree and did not allow for review, or recourse. Section 5 of the 1927 Black Administration Act for example, allowed the State President to order a community to move from any one place in South Africa to another within a specified period of time. Forced removals were implemented as a "normal" part of the running of government. Armed with an arsenal of authoritarian legislation and policy, and backed by the repressive arms of the state, civil servants carried out actions that destroyed lives, families and communities. In the process of each struggle against removal, the state used its repressive powers to a greater or lesser degree. In the forced removals and the resistance of the 1980's, detention without trial, torture, and shootings became a feature of many struggles.

Forced removals began in earnest in the mid 1950s and continued for over three dec