The Supreme Court of Appeal has ruled that Robert McBride should not be called a “murderer”. Now the case goes to the Con Court. Tshepo Madlingozi explains why his group for victims’ rights got involved
The Khulumani Support Group, a social movement of victims and survivors of gross violations of human rights under apartheid, has decided to intervene, along with a network of civil society organisations, as amicus curiae (friend of the court) in the Constitutional Court case between Robert McBride and The Citizen.
McBride, a former member of MK (Mkhonto weSizwe, the military wing of the ANC) sued The Citizen for publishing a series of articles referring to him as a murderer and killer. The basis for his defamation claim is that because he was granted amnesty by the Truth and Reconciliation Commission (TRC) for the 1986 Magoo’s Bar bombing in which a number of people were killed and about 70 injured, it is wrong to refer to him as a murderer or killer. The Supreme Court of Appeal (SCA) agreed with him and decided that the granting of amnesty wipes away the conviction “for all purposes”, and thus to refer such a person as a “killer” or “murderer” is false and defamatory.
Khulumani joined the case as amicus curiae, but we want to emphasise that neither the organisation nor its members are fighting with McBride. Nor is Khulumani questioning the legitimacy of the ANC’s (and other liberation forces’) decision to take up arms against the evil system of apartheid. We believe it is inappropriate to draw moral equivalence between the actions of the murderous apartheid regime and the resistance mounted by the liberation movement(s).
Khulumani has joined this case because the implication, if McBride wins, is to nullify the struggle of thousands of Khulumani’s members in telling the truth about their experiences during apartheid. It would mean that no one who received amnesty may be called a “murderer” or a “torturer”. Hence, members of Khulumani would no longer either be “victims” of crimes that no longer “exist”– just as the perpetrators would no longer be identified as “perpetrators”.
This is silly, insulting and false. A killer is a killer, and the crime remains the crime. The fact that a perpetrator received amnesty cannot deny the very fact of the act. Amnesty simply means that the person’s conviction is removed, and he or she is no longer guilty in terms of the law. It cannot mean that the act never happened and that therefore the person is no longer a killer.
It was only recently, on February 23 2010, that the Constitutional Court, through Chief Justice Sandile Ngcobo, held that victims have a right to participate in activities that concern them — and have a right to the truth about what happened to them and their loved ones. He remarked: “Excluding victims from participation keeps victims and their dependants ignorant about what precisely happened to their loved ones; it leaves their yearning for the truth effectively unassuaged and perpetuates their legitimate sense of resentment and grief. The results are not conducive to nation-building and national reconciliation.”
The TRC was not intended to be about amnesia. Nor did it mean to pretend that gross violations of human rights never happened. It purported to be about the truth.
Khulumani is fighting this decision because it fights for the right to continue to tell the truth about what happened to the loved ones of its members. Khulumani is opposing the SCA decision because, for its members, the past is still very much in the present: they continue to live with the physical and psychological scars of what happened to them.
The new dispensation has not led to the betterment of their lives. The SCA decision vindicates Khulumani’s belief that “transitional justice” in South Africa was predominantly perpetrator-friendly, and that victims were used (or even “exploited”) to facilitate an elite transition.
The SCA decision not only justifies the continuation of perpetrators (and beneficiaries) of apartheid, in many instances, living a life of luxury — it also implies that the brutalities committed never happened and that victims are delusional.
Tshepo Madlingozi is the national advocacy coordinator of the Khulumani Support Group, the only national membership organisation of victims and survivors of apartheid-era gross human-rights violations. It has a membership of approximately 58 000. See the Red Card Campaign at
http://redcardcampaign.wordpress.com