Why did the Truth and Reconciliation Commission keep the names of the journalists who were apartheid spies secret when full disclosure, as a means to pursue national transition and reconciliation, was the basis of the moral and operational structure of the TRC law.
In a landmark judgment handed down on 4 April 2011 the Constitutional Court upheld the rights of victims of apartheid era abuses, as well as the media and public, to speak the truth about crimes amnestied by the Truth and Reconciliation Commission (TRC). The court held that truth-telling was the moral base of the transition from the injustice of apartheid to democracy and constitutionalism. It held further that the TRC process, which was premised on the necessity of truth-telling in pursuit of national unity and reconciliation, could not operate so as to render the truth false.
The High Court and the Supreme Court of Appeal had earlier ruled that the Promotion of National Unity and Reconciliation Act (the TRC Act), which provides that a grant of amnesty expunges a conviction “for all purposes,” meant that the criminal act amnestied did not occur. Robert McBride, who had been convicted for murder following the bombing of a bar in the 1980s, was granted amnesty for his murder convictions. According to the lower courts this meant he “could no longer be considered to be a criminal” and to call him a murderer is thus false.
The South African Coalition for Transitional Justice (SACTJ) supported two victims of apartheid atrocities, Joyce Mbizana and Mbasa Mxenge, to bring an amicus brief before the Constitutional Court. Family members of Mizana and Mxenge were murdered by the apartheid security police who were granted amnesty by the TRC’s Amnesty Committee for such murders. They submitted that the ruling of the lower courts impaired their ability to speak freely about the crimes committed against their family members, and about the wrongdoers who received amnesty. They contended that freedom of expression is constitutive of dignity: to deny persons in their position the right to speak the truth without fear of being sued for defamation strips them of their dignity. They argued that the effect of amnesty could not alter the historical facts.
Further, Mbizana and Mxenge contended that individuals have a “right to truth,” which is recognized as an emerging right in customary international law. They asserted that the constitutional protection of this right (and the ability to engage with the truth) emerges from the values of human dignity, equality, the rule of law, free expression and access to information.
The Constitutional Court held that full disclosure of the truth, as a means to pursue national transition and reconciliation, was the basis of the moral and operational structure of the TRC law. It held that the rulings of the lower courts were in conflict with the statute’s context and historical setting, and at odds with one of the moral impulses of the reconciliation process itself. The court stated that it “is hardly conceivable that its provisions could muzzle truth and render true statements about our history false.” Justice Edwin Cameron, writing on behalf of the majority, held that proscribing the truth would be antithetical to the adequate compilation of the collective memory of South Africa’s past.
In particular, the court recognized that family members have a right to describe, with truth and accuracy, the perpetrators of the gross wrongs inflicted on their loved ones. They were entitled, despite the amnesty granted, to continue to call the killing of their loved ones “murder,” and those who perpetrated the killings “murderers.”
The court held that the process of reconciliation is still unfolding, and that the fragilities of its meaning cannot be prescribed by law. It noted that the best chance for successful reconciliation lies in fostering open public discussion and that public debate lies at the heart of participatory democracy.
John Horak testified at the TRC in 1997 admitted he was a police agent for 27 years while working for two leading English newspapers. He worked for Rand Daily Mail and Sunday Times and many journalists, he testified, were aware of his double role of spy and journalist at the same time. He said none of the editors would act against him without solid evidence.
He claimed more journalists were working as state informers after apartheid than was the case during the heaviest days of repression. In a SAPA (South African Press Association) article published on 16 September 1997, he’s quoted as having singled out former Sunday Times editor Tertius Myburgh as one of the editors who had knowingly co-operated with him in his position as an informer.
He said former Sunday Express editor Ken Owen had also allowed police spy Craig Williamson to write a column under an assumed name in his newspaper, the article read.
He said he was also often approached by journalists seeking favours from him because they knew he was a police spy. These included getting passports and visas organised by the apartheid state.
Many, including an assistant Sunday Times editor, had approached him, seeking his assistance in getting into contact with the security forces so that they could work for them.
His testimony, SAPA wrote, contained many gaps because “TRC regulations prevented him from naming individuals who were still alive and working in the media, but he revealed that he had spent more than 30 hours being “debriefed” by the commission. It became clear during his testimony that the names had been given to the commission in the debriefing”.