It is as certain as anything that the security forces of the apartheid regime would not have supported the negotiated settlement which made possible the "miracle" of our relatively peaceful transition from repression to democracy—when most people had been making dire predictions of a blood bath, of a comprehensive disaster that would overwhelm us—had they known that at the end of the negotiations they would be for the high jump, when they would face the full wrath of the law as alleged perpetrators. They still controlled the guns and had the capacity to sabotage the whole process.
As the beneficiaries of a peaceful transition, citizens in a remarkable democratic dispensation, some South Africans—and others in the international community— enjoy the luxury of being able to complain that all the perpetrators ought to have been brought to justice. The fact of the matter is that we do unfortunately have remarkably short memories. We have in our amnesia forgotten that we were on tenterhooks until 1994, within a trice of the most comprehensive disaster, but that, in God's mercy, we were spared all of this. Those who now enjoy the new dispensation have forgotten too soon just how vulnerable and indeed how unlikely it was and why it is that the world can still look on in amazement that this miracle did in fact unfold. The miracle was the result of the negotiated settlement. There would have been no negotiated settlement and so no new democratic South Africa had the negotiators on one side insisted that all perpetrators be brought to trial. While the Allies could pack up and go home after Nuremberg, we in South Africa had to live with one another. . . .
There were other very cogent and important reasons that the Nuremberg trial 15 option found little favor with the negotiators. Even if we had been able to choose it, it would have placed an intolerable burden on an already strained judicial system. We had some experience of cases of this nature because the state had in two major
trials prosecuted Colonel Eugene de Kock, former head of a police death squad, in 1995 and 1996, and General Magnus Malan, former Minister of Defense, and a number of generals and other military officers in 1996. It had taken a whole bevy of Department of Justice and Safety and Security (police) personnel eighteen months to make a case successfully against de Kock, and since he had been a former state employee, the state was obliged to foot his legal bill, which came to R5 million (nearly U.S. $1 million)—an amount that did not include the cost of the prosecution and its bureaucracy, or an expensive witness protection program. In the case of General Malan and his co-accused, the prosecution failed to nail their men and the costs were astronomical, running into nearly R12 million (U.S. $2 million) just for the defense, which again had to be borne by the state. In a country strapped for cash and with a whole range of pressing priorities in education, health, housing, and other fields, tough decisions had to be made about what the country could be expected to afford.
We also could not have afforded to canvass day in and day out for an unconscionably long time details which from the nature of the case would be distressing to many and also too disruptive of a fragile peace and stability. We certainly would not have been able to have the tenacity of Nazi hunters who more than fifty years later are still at it. We have had to balance the requirements of justice, accountability, stability, peace, and reconciliation. We could very well have had justice, retributive justice, and had a South Africa lying in ashes—a truly Pyrrhic victory3 if ever there was one. Our country had to decide very carefully where it would spend its limited resources to the best possible advantage.
Other important reasons why the trial option was not a viable one could still be adduced. A criminal court requires the evidence produced in a case to pass the most rigorous scrutiny and satisfy the criterion of proving the case beyond reasonable doubt. In many of the cases which came before the commission, the only witnesses to events who were still alive were the perpetrators and they had used the considerable resources of the state to destroy evidence and cover up their heinous deeds. The commission proved to be a better way of getting at the truth than court cases: amnesty applicants had to demonstrate that they had made a full disclosure to qualify for amnesty, so the normal legal process was reversed as applicants sought to discharge the onus on them to reveal all.
Most distressingly, we discovered in the course of the TRC investigations and work that the supporters of apartheid were ready to lie at the drop of a hat. This applied to cabinet ministers, commissioners of police, and of course those in the lower echelons as well. They lied as if it were going out of fashion, brazenly and with very considerable apparent conviction. In the courts it was the word of one bewildered victim against that of several perpetrators, other officers in the police or armed forces who perjured themselves as they have now admitted in their applications for
3. Pyrrhic victory: a victory that inflicts great in 280 bce but, in doing so, took devastating damage on the victor, named after the Greek casualties that limited his ability to fight future king Pyrrhus, whose army defeated the Romans wars.
amnesty. It would have had to be a very brave judge or magistrate who would find in favor of the solitary witness who would in addition have the further disadvantage of being black facing a phalanx of white police officers who really could never do such a dastardly thing as to lie in court.
No wonder the judicial system gained such a notorious reputation in the black community. It was taken for granted that the judges and magistrates colluded with the police to produce miscarriages of justice. Until fairly recently the magistrates and judges were all white, sharing the apprehensions and prejudices of their white compatriots, secure in enjoying the privileges that the injustices of apartheid provided them so lavishly and therefore inclined to believe that all opposition to that status quo was Communist-inspired and generally supporting the executive and the legislative branches of government against the black person who was excluded by the law from a share in the governance of his motherland. Many judges in the old dispensation were blatantly political appointees and they did nothing to redeem the reputation of the judiciary as a willing collaborator with an unjust dispensation. Of course there were some exceptions, but by and large the dice were heavily loaded against the black litigant or accused or complainant. It will take some time for our black people to have confidence in the police and the judicial system, which was so badly discredited in the bad old days. . . .
When it came to hearing evidence from victims, because we were not a criminal 20 court, we established facts on the basis of a balance of probability. Since we were exhorted by our enabling legislation to rehabilitate the human and civil dignity of victims, we allowed those who came to testify mainly to tell their stories in their own words. We did do all we could to corroborate these stories and we soon discovered that, as Judge Albie Sachs, a member of our Constitutional Court, has pointed out, there were in fact different orders of truth which did not necessarily mutually exclude one another. There was what could be termed forensic factual truth—verifiable and documentable—and there was "social truth, the truth of experience that is established through interaction, discussion and debate."[226] The personal truth—Judge Mahomed's "truth of wounded memories"—was a healing truth and a court of law would have left many of those who came to testify, who were frequently uneducated and unsophisticated, bewildered and even more traumatized than before, whereas many bore witness to the fact that coming to talk to the commission had had a marked therapeutic effect on them. We learned this from unsolicited comment by the brother of one of the Cradock Four, ANC-supporting activists who left their homes in Cradock to attend a political rally in Port Elizabeth and never made it back home, having been gruesomely murdered by the police. The brother said to me after one of his relatives had testified at the TRC's first hearing, and before the policemen responsible had confessed and applied for amnesty: "Archbishop, we have told our story to many on several occasions, to newspapers and to the TV.