As 2015’s International Right to Truth day arrives in South Africa, SAHA can announce that it has won an 11 year battle with the Department of Justice regarding the release of records from the Truth and Reconciliation Commission’s in-camera (Section 29) hearings. Section 29 hearings were an important part of the work of the Truth and Reconciliation Commission (TRC).
The hearings consisted of investigative enquiries held in-camera, and were comprised of individuals who were under oath to divulge the full extent of their knowledge of some of apartheid’s most heinous crimes. Hearings held under Section 29 included discussions of the plane crash that killed Mozambican President Samora Machel; the Helderberg disaster; and the deaths of anti-apartheid activists such as Rick Turner and Griffiths Mxenge.
Read more about SAHA's multiple TRC collections here
Since 2001, SAHA has held the position that records of these closed hearings should be part of the publicly accessible TRC archive. In 2003, SAHA submitted PAIA requests for the records of five particular Section 29 hearings. The requests included the hearings of the notorious spy Craig Williamson, as well as the hearing where the death of Stanza Bopape - a 27 year old political activist who was tortured to death in 1988 - were investigated.
The Department of Justice denied all such requests, and so began 11 years of contestation and activism on SAHA’s part, to ensure this part of apartheid’s history is brought into the public domain. The Department of Justice’s arguments against the release of the records – both the requests for five records and the subsequent 2006 PAIA request for all Section 29 hearing records – were in fact a failure to apply the PAIA legislation correctly; and a failure to appropriately interrogate the notion of confidentiality as laid out both in the TRC Act, and the subsequent affidavits of ex-Commissioners from the TRC, which were sourced and supplied by SAHA
Read SAHA's PAIA request - and the Department of Justice's responses - here
The Department of Justice cited three key reasons for the denial of SAHA’s requests. The first reason was that the TRC had deemed Section 29 hearings confidential, and never had any idea of releasing them to the public at a later date; the second reason was that the content of the hearings, if released publicly, could cause material damage to the persons concerned, who had been guaranteed confidentiality at their hearings; and the final reason was that public release of these records could negatively impact on prosecutions that were being investigated and undertaken by the National Prosecuting Authority.
SAHA, having extensive experience with the TRC and its work, were able to prove that in 2003, the TRC Commissioners had met and discussed the importance of allowing Section 29 hearings to be publicly released, while taking privacy considerations into account. This removed the first obstacle. The issue of confidentially was also successfully challenged, by proving that the legislation governing Section 29 hearings assured confidentiality at the time of the hearing; and left future confidentiality in the hands of the TRC.
There was no directive to apply blanket confidentiality to all hearings – demonstrated by the release of the Section 29 hearings from the Helderberg disaster inquiry, where 159 people died as a South African Airways plane exploded mid-air near Mauritiius in 1987; as well as excerpts from other Section 29 hearings about the Mandela United Football Club, and Winnie Madikizela-Mandela's knowledge of their activities. Equally, Dirk Coetzee - one of Vlakplaas's most senior officers who exposed the unit's existence in 1989 - was able to obtain the Section 29 record of Joe Mamasela, to be used for his personal defence. Joe Mamasela, a notorious Vlakplaas askari, was implicated in many abuses, including the abduction of the Pebco 3.
Read excerpts of Winnie Madikizela-Mandela's publicly available Section 29 transcript here
This decision made it quite clear that the TRC’s legislation implied that privacy and confidentiality concerns should be examined on a case-by-case basis, when considering Section 29 records: it should be a consideration of content, not simply the classification, of a document. In addition, a blanket refusal based on confidentiality was counter-intuitive, when some records were already in the public domain. By the time SAHA’s 2009 PAIA request for Section 29 records had a deemed refusal (in other words, the Department of Justice had ignored the request for an internal appeal), it was clear that the route to making this part of our history publicly available would have to be through court.
Read the publicly available Section 29 transcripts of the Helderberg crash inquiry here
A renewed request in 2013 challenged the third and final objection raised by the Department of Justice: since 2009, the NPA had launched no prosecutions of persons under consideration in the Section 29 hearings, and the Department of Justice had supplied no information on any potential cases. It was no longer tenable to refuse access to records based on prosecutions that appeared ephemeral.
Thus, after filing court papers in 2014, the year’s end saw 174 records from Section 29 hearings being delivered to SAHA.
11 years of interrogation of the right to privacy, and the public’s right to truth, has, to date, resulted in partial victory for SAHA’s arguments. SAHA is still engaging with the DOJ to finalised some omissions in this released and the archival team is currently digitising and cataloguing released records for inclusion in SAHA collection AL2878: The Freedom of Information Programme Collection (accessible to researchers visiting the SAHA reading room at Constitution Hill) and for wider public access through the SAHA / SABC Truth Commission Special Report website.
But what exactly what will be found in these records will unfold over the coming months – but South Africans should be reassured that another information gap in our murky past is finally being filled.
Make sure you keep up to date with Section 29 releases by visiting the SABC/SAHA website Truth Commission: Special Report
Read more about SAHA's long-standing engagement with accessing TRC documentation in Chapter 2 of Paper Wars - accessible here
Read SAHA's publication - The Battle against Forgetting: human rights and the unfinished business of the TRC
Read more about SAHA's efforts to bring the TRC into South Africa's classrooms here