The truth commission has its own gravy train -but it’s not for victims, writes Lizeka Mda Joyce Mthimkhulu is turning 61 on Sunday. She’ll go to church, but that’s the extent of her celebration. This Port Elizabeth family has very little to celebrate these days. Not when living from one day to the next is a struggle.
Try living on a R470 old-age pension when there are eight people to feed, clothe and keep healthy. “God finds a way,” she shrugs.
Her faith has been tested. In 1982 her only son, Siphiwo, was detained, poisoned, released, confined to a wheelchair, abducted and murdered by the police. Ten years later, her husband retired after 17 years as a security guard at Dora Nginza Hospital, only to be told that he had been a casual employee all those years and would not be getting anything for his retirement from his employer.
In January she applied for a pension but has yet to receive a cheque.
Ironic then that the most recent source of grief in the Mthimkhulu household is the truth and reconciliation process.
The Promotion of National Unity and Reconciliation Bill provides for “the granting of amnesty to persons who make full disclosure of acts associated with a political objective committed in the course of conflicts of the past … the taking of measures aimed at the granting of reparation to, and the rehabilitation and the restoration of the human and civil dignity of, victims of violations of human rights”.
Appearing in front of the amnesty committee did nothing for their stripped dignity but just compounded the Mthimkhulus’ victim status. Their ordeal raises some questions about the stated aim of the process of reconciliation.
The Mthimkhulus, with barely two cents to rub together, had to rely on the Legal Aid Board to finance their legal representation in opposing the amnesty applications. But the board’s tariffs – R150 a day for consultation, and R725 to appear before the amnesty committee – does not fire many lawyers with enthusiasm.
Fortunately, the lawyer the Mthimkhulus retained, Mpumelelo Nyoka, was prepared to work for the paltry sum. Not so the senior counsel he decided to instruct, Justice Phoswa. Now Phoswa’s discounted rate of R5 000 a day, plus travel and accommodation, is bound for Nyoka’s account because he knows the Mthimkhulus will not be able to pay.
“I’ve decided this is my contribution to reconciliation,” says Nyoka.
In the Mthimkhulu case and the majority of amnesty hearings generally, the perpetrators of human rights crimes are former security force members.
In a deal struck in an effort to persuade them to come forward with the truth, the Department of Safety and Security (read taxpayer) will settle their legal costs. But their rates, set by the state attorney, are much more attractive than the Legal Aid Board’s.
Consultations and preparations have an hourly tariff of R250 to R400, while the appearance fee is R1 500 to R2 500 per day. If the lawyer represents more than one person, there is a descending scale, with a maximum of R4 000 a day per lawyer. Both the instructing attorney and the advocate are entitled to these fees.
These are by no means commercial rates, but they may just as well be for the comfort the victims and their families draw from the situation. And there is a widespread feeling that the government is not as supportive as it could be, particularly to the thousands of activists whose cases have a lower profile than others.
Certainly the Hani family did not have to scrounge around for funds to oppose the amnesty applications of Clive Derby-Lewis and Janus Walusz. And the Legal Resources Centre (LRC) which, while specialising in human rights violations, picks its cases, is handling the Biko and Cradock Four matters.
Advocate Patrick Mtshaulana of the LRC says it does not have an endless supply of funds. “As it is, we are still looking for a sponsor for the cases we have taken on,” he says.
Phoswa says the discrepancy in the fees paid to lawyers for and against amnesty applications is an insult. “Everything possible is being done to see that one side gets proper representation, while the other side gets nothing,” he says. “But the whole thing is in keeping with a trend which is completely unsympathetic to black people.”
Joyce Mthimkhulu is very disappointed that in 16 years, the organisation his son was so dedicated to, and eventually died for, the Congress of South African Students (Cosas), has never offered any kind of support, let alone financial.
“Siphiwo’s two children have never even received a pencil from Cosas,” she says.
Others raise questions about the reluctance of lawyers generally, and black lawyers in particular, to come to the assistance of apartheid victims.
“When international money was flowing in the 1980s and early 1990s through the International Defence Aid Fund, and the South African Legal Defence Fund (Saldef), many lawyers went out and touted for political cases,” says a lawyer who works for the truth commission. “Some even padded their fees. Surely it’s payback time now? But they are nowhere to be found.”
Saldef closed down in 1995 when its international donors decided to channel their funds to the new government instead, and to continue funding the LRC. They also decided that the Legal Aid Board could do Saldef’s work.
Ntobeko Maqhubela, who used to head Saldef, is now a special adviser to the Eastern Cape premier. He recalls that there were about 300 law firms on Saldef’s books.
Of those lawyers, the Mail & Guardian could only confirm one, Justice Phoswa, SC, as being involved in the amnesty process today. Many are now involved in government structures like Parliament.
As the amnesty process drags on for months to come, more and more apartheid victims like the Mthimkhulus are going to find themselves where they were before the truth and reconciliation process began – up a dry creek.