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Johannesburg Bar, who is not a member of the ANC, was appointed for this purpose. The Commission was promised
"full and unhindered access" to all records, documents, files, archives and other materials relevant to the investigation
as well as the records of past enquiries and investigations relevant to the Commission's work.
It was provided that the proceedings of the Commission were to take place "at an appropriate venue" but that such
proceedings should not be open to the general public or the press. However, the Commission was given the power to
determine whether or not the presence of any person was necessary or desirable during the hearing of evidence. Any
former prisoner was entitled to lodge a complaint with the secretary of the Commission. An Independent firm of
attorneys was appointed to facilitate the processing of complaints. Finally, the ANC undertook to publish the report of
the Commission "subject only to the deletion of the names of persons mentioned in the report where this is
considered appropriate by the Commission for reasons of privacy, reputation, safety, confidentiality or the
In order to explain the workings of the Commission and the limitations placed upon the ambit of its enquiry, certain
features of these terms of reference require elaboration.
i. Being an internal Commission and not one clothed with statutory powers had important consequences for the
Commission's method of enquiry. The Commission had no power to subpoena witnesses, nor could it comply
witnesses to answer questions. The Commission could not offer apprehensive witnesses any form of protection.
ii. The efficacy of the Commission was largely dependent on the willingness of witnesses to come forward. For
reasons which are more fully discussed below, this proved to be the greatest shortcoming of the Commission.
iii. Ordinarily an enquiry which had attracted such widespread public interest, should be conducted in public. There
were important considerations which rendered this impractical and undesirable. It must be emphasised that the
enquiry was internal and that its principal purpose was to enable the ANC to investigate shortcomings within its
own organization and to receive recommendations to prevent abuses from occurring in the future. Enquiries of
most professional associations, such as those pertaining to attorneys, advocates and doctors, are not open to the
press and the public. To hold open hearings would have resulted in many of the witnesses refusing to give
evidence. Although the task of the Commission was purely investigatory, allegations of a serious nature were
levelled against specific named individuals who did not have the opportunity to defend themselves against such
allegations. It would have been unfair to such persons if these allegations became public knowledge without the
persons concerned being afforded an opportunity of dealing therewith. Many of the witnesses who eventually
testified before die Commission would not have done so had the hearings been open to the public. They feared
that they might suffer adverse consequences should their identities have been revealed. We felt obliged to
respect their wishes.
iv. Because of the closed nature of the enquiry, several features of the terms of reference were designed to mitigate
the effects of secrecy. In particular, the appointment of an independent advocate to lead the evidence, as well as
the undertaking to publish the report, were considered to be important safeguards against possible abuse. In
addition, however, it was deemed appropriate to invite representatives from the International Commission of
Jurists, the International Committee of the Red Cross and Amnesty International to attend hearings of the
Commission. Only a representative from Amnesty International attended various sittings of the Commission.
v. While the terms of reference were sufficiently wide to allow the hearing of evidence in relation to all former
detainees, the catalyst for the appointment of the Commission was the return of the group of 32 referred to
above. The Commission therefore saw its primary task as concentrating upon the allegations emanating from the
group of 32.
vi. The terms of reference were deliberately phrased to require former detainees to testify as to "their"conditions of
detention, maltreatment and loss or destruction of property. Although the Commission heard evidence from
detainees in relation lo complaints and the hardships allegedly suffered by others, the terms of reference strictly
speaking precluded this.
vii. The Commission's powers extended only to the making of recommendations. Accordingly, there is no power of
enforcement and it is for the ANC itself to decide whether or not to act on the recommendations made hereafter.
From the outset. the REC (as well as another organisation of former detainees formed in 1990 known as the Returned
Exiles Coordination Committee) has sought to discredit the Commission. It has done so by a vigorous media campaign
The principal basis of the attack has been that the members of the Commission are biased in favour of the ANC and are
accordingly incapable of conducting a fair enquiry. It is alleged that Adv L. Skweyiya S.C., who was appointed Chairman
of the Commission and Ms Mabandla are both members of the ANC and serve on its Constitutional Committee. Adv
Skweyiya is also said to be a brother or cousin of Zola Skweyiya, a high-ranking official in the ANC's legal department.
Adv Marcus is said to be related to Ms Gill Marcus, the ANC spokesperson. Apart from the latter suggestion, all the
other allegations are entirely true. In consequence, the perception has been created that the ANC has appointed a
"tame" Commission.
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