Reconciliation and Revenge in Post-Apartheid South Africa: Rethinking Legal Pluralism and Human Rights
Reconciliation and Revenge in Post-Apartheid South Africa: Rethinking Legal Pluralism and Human Rights
R000222777
Award Holders: Dr. Richard Wilson
Objectives
All of the objectives listed below were thoroughly addressed in the research, even if
not fully resolved. In addition, the reader is referred to the results section later in this
report.
A key intellectual aim from the commencement of the project has been to extend the
long-standing debates and discussions within legal anthropology to issues of human
rights. This involvement taking the discussion of rights out of the heady heights of
legal and political theory, and looking at their concrete operation, that is, the social
life of rights. Legal anthropology has developed the analytical tools and empirical
focus for examining the context of human rights. It has long been concerned for
instance, with the relationship between legal processes and popular legal
consciousness (Merry 1990, Conley and OBarr 1990). Do people taking their claims
to legal institutions share the values of those institutions and how do popular ideas
about rights and justice change through their involvement in legal practices and
discourses? Looking outside the context of legal processes, in what areas of local
justice are human rights ideas resisted, when are they appropriated and when are they
simply bypassed when other values are consider to be of greater priority? How could
these insights and research priorities be applied to transnational human rights
institutions which have become so prevalent in the 1 990s?
A main objective of my original research proposal was to undertake a highly
ethnographic and interview based approach to understanding the relationship between
the TRC and responses of victims and survivors of political violence. This was
realised as I developed a close relationship with survivors in a case where security
force personnel lured 4 ANC comrades into a disused mine shaft and then detonated
hidden explosives, killing three of the youths. Commissioners presented this case as
the zenith of reconciliation after the victims families forgave the sole survivor of any
wrongdoing at the TRC hearings, but the implications were much more complex than
appeared at the public hearing.
I planned to focus upon local justice institutions to examine relational discontinuities
between human rights and local notions of punitive vengeance, and this was achieved.
I was able to chart new developments in Boipatong, where a local township court had
been operating since 1994, beating those suspected of petty crimes and turning over
suspects of more significant crimes to the police. This material would allow me to
theorize the relationship between local and state and transnational justice institutions,
and to get a better idea of the concrete operation of legal pluralism in South Africa.
Finally, I was able to state the policy oriented objectives of the research, through
participation in a conference in Johannesburg in June 1999, and in my appearance
before a Commons Select Committee on International Development in December
1998.
Methods
This research project involved one months intensive fieldwork in Johannesburg and
in its surrounding townships-particularly Kagiso in the West Rand and Boipatong in
the Vaal.
In Johannesburg, I carried out interviews with staff in human rights NGOs, with
journalists covering the TRC, religious leader and most importantly with acting and
former employees of the TRC. The latter category provided much useful information
which they had been cautious to reveal earlier during their employment. I was also
able to interview a high ranking member of the ANC national executive, Jeremy
Cronin, in order to understand better the circumstances around the ANCs legal
opposition to the publishing of the TRC Report.
In the townships around Johannesburg, I divided my time between two locales and
carried out 20 in depth interviews (lasting two hours or more) overall. I attended the
Boipatong community court in order to assess its functioning in the new context of
human rights, and was able to follow up some fascinating developments which nearly
led to the demise of the court. This involved a case where a woman beaten by the
court successfully prosecuted court members, and I was caught up in interviewing all
those involved in the case. In Kagiso, I spent long periods of time interviewing a
survivor who had testified to the TRC, Zandile Musi, and the families of the dead
victims of the West Rand Mine shaft case. In interviews, I gained much useful
testimony on how the families felt the TRC had treated them in making statements
and during the hearings, and on their responses to the findings made in their case in
the TRC report, which held high ranking apartheid government ministers responsible.
Results: Ethnography and Analysis
An engagement with human rights institutions may emerge less out of a resonance
between value-systems and more from diverse agendas of individuals who decide to
pursue them through TRC procedures. In so doing, they become integrated into those
procedures; from taking statements, to testifying at a Human Rights Violations
(HRV) hearing, to granting reparations and making findings in individual cases.
Involvement with the TRC may result from a particular need of victims to clear their
name, and to use the public forum of the TRC to do so, rather than from a deep
commitment to the whole TRC agenda of reconciliation, nation-building and a culture
of human rights. The lesson from the case of Zandile Musi case is one which a
number of legal anthropologists such as Merry (1990) and Conley and OBarr (1990)
have been making very clearly: that people become involved in legal processes for a
variety of reasons which may be very distinct from what the law itself thinks it is
doing, and that their involvement does not necessarily mean a deep loyalty or affinity
to a set of values.
What people see as valuable are the mechanisms, but why they want to participate in
those mechanisms may diverge significantly from the officials administering them.
Conley and OBarr (1990:176) for instance, demonstrate how many litigants narrate
their side of a dispute in terms of social relationships rather than the rule-oriented
thought processes of court specialists (judges, lawyers, clerks). Moreover, relational
litigants may have theories of evidence, proof, causation, blame and responsibility
which differ markedly from the official legal versions.
Procedural Pragmatism
In 1982, Zandile Musi was 19 years old and at secondary school in Kagiso. This was
a time of politicization of the township and country-at that time the Kagiso Residents
Organization and the Cdngress of South African Students (COSAS) had just been
formed. With his close childhood friend Fanyana Nhlapo, Zandile Musi participated
in COSAS activities and at the Faith Mission Church. There he met Eustice Bimbo
Madikela and Peter Ntshingo Matabane and like thousands of other young men in
the townships at that time, they decided to join the armed wing of the liberation
movement. In January, 1982, the boys expressed their desire to leave the country and
receive military training to Mfalapitsa Ephraim Tihomedi, a friend of Zandiles older
brother Mbulelo who was himself in exile with the ANC.
Ephraim said that he would train them himself to carry out operations. Ephraim said
they should wait for him at Leratong Hospital at 8 p.m. The four young comrades lied
to their families-saying that they were going into Johannesburg to a Millie Jackson
concert at the Coliseum. They even went so far as to buy tickets, but Ntshingos
mother was suspicious and confiscated his and refused permission to go. In the end
she relented to his pleas. At 8 PM, Ephraim picked them up in an inconspicuous
white van. Behind the wheel was a black man theyd not met before, with a large scar
across his face. The youths were taken to the West Rand mine shaft. Inside, Ephraim
took out an Fl hand-grenade and fitted the detonator onto the grenade. He left the
hand-grenade with Ntshingo and left in a hurry, saying he was going to retrieve more
grenades.
There was a huge explosion and Zandile lost consciousness. The police came at about
9 a.m. and took Zandile to Leratong hospital. The other three comrades had died in
the night. Zandiles leg was broken, his ears were bleeding and he has been partially
deaf since then. He was taken by police out to a field where a policeman stuck a gun
in his mouth and asked who had brought him to the West Rand mine shaft. Policemen
took turns jumping on his broken leg. Zandile was charged with possession of
explosives and after two months in detention, he was given bail. He was eventually
acquitted because a passing white policeman admitted that Krugersdorp police had
tortured him.
For over a decade, Zandile was ignorant of the events behind what had happened that
night in February. In 1996 he learned from a South African Broadcasting Company
(SABC) journalist that the driver with Ephraim, scar-face, was the security
policeman Joe Mamasela. The young comrades had been tricked by double agents or
askaris, former ANC combatants who had been turned by the security forces. Since
1982, Kagiso township residents were suspicious of Zandile, as he was the only
survivor. It emerged in the hearing that relations were strained between Musi and the
families of his 3 fellow comrades who had been killed. After the explosion, the
families of the comrades did not visit Zandile Musi in hospital but they did attend his
trial. Zandile felt that they had blamed him and he was plagued by guilt since he had
been the ring-leader and had put them all in touch with Ephraim.
After Musis testimony, there followed the testimonies of the three sisters of the
fallen comrades. They were all still living in Kagiso, as was Musi. Common to all of
them was a previous suspicion of Zandile Musis role in their brothers deaths.
Behind the Scenes in Kagiso
It was uncommon that reconciliation was as apparent at a hearing as in the West
Rand mine shaft incident. This case exemplified better than any other what the TRC
itself thought it was doing to facilitate reconciliation in the HRV hearings it held
around the country: victims told their stories, the truth came out, families openly
forgave each other after years of resentment and reconciliation was there for all to
see.
I interviewed Zandile Musi and other members of the families in Kagiso in late 1998,
and started to get a picture of where the TRC fit into their long process of
reconciliation. Zandile is now in his mid-thirties, married with two sons and
working as a taxi driver in Kagiso. His brother Mbulelo is Deputy Director of
Communications of the Gauteng Provincial legislature. The family has prospered
under the new ANC regime, but Zandile still feels his life has been ruined. When
asked why he went to the TRC, Musi replied:
I wanted my case to be known and what happened to me. To appear before the
TRC would help to remedy the misery of my life. I wanted the families f the other
victims} and the world to know. . . I had avoided them. I had always blamed
myself for what happened and didnt know how to start with them. The TRC was
an avenue that could make it possible to convey that.
The attendance of some members of the family had only been made possible by
developments earlier on that year. Simmering hostility between Musi and the families
of the three dead comrades, began to break down in early 1996 due to the intervention
of an SABC television journalist, Reggie Morobe, who was making a program on the
case. Morobe was hoping film a meeting between the families and the perpetrator
Ephraim for his documentary on reconciliation for a current affairs program
Newsline.
The timing of events was fortuitous for Musi. When asked whether he felt that he had
been forgiven by the other families before the hearing, during or after, he replied:
Before-I could see they had forgiven me before we went to the TRC. I continued,
So the TRC was a public expression of what had already happened privately? Musi
commented, Yes. And it continued afterwards. The TRC said theyd arrange
mediation between the families but they didnt. There was no further communication.
But afterwards we all had a meeting here at my brothers house over a weekend. We
just sat here and talked and talked.
Interviews with relatives of the three dead comrades showed that they were not fully
convinced. Ntombi Emily Zanele, the younger sister of Fanyana Nhlapo said:
Zandile came to explain to us what had happened in 1996, but our family didnt
understand. After the TRC hearings, we saw that Zandile was telling the truth. We
listened, but others did not. Myself and my aunt were the only ones to attend and we
told our family about the hearings, but they didnt want to understand. They were
suspicious of Zandile and think he got money and used it for himself. I then asked,
Do you think Zandile has finally cleared his name in Kagiso? and Emily Zanele
replied, No the community blames Zandile. They say, How was it that you survived
and they died?
.
If one delves deeper into the ideas around reconciliation which Musi and the three
hold, one gets a sense that the values of the TRC were not successfully transmitted to
all participants. Buzzolis (1998) use of a Durkheimian analysis of collective
effervescence to explain how the new values of reconciliation are transferred to
audiences at TRC hearings have to be put into context. Aspects of the HRV hearings
are highly ritualized in order to create new identities and to engender new
dispositions of forgiveness, but we must take into account not only how values are
diffused, but also how they are received. People are not ideological dupes or mere
vessels of discourses as they are portrayed in many dominant ideology theories and
their post-modern successors. This was apparent when I asked Zandile, Did you have
the same ideas about reconciliation as the TRC? and he replied, What was the
concept of reconciliation of the TRC? I dont know.
The participation at the TRC hearings had not, in this case, led to victims forgiving
perpetrators and forsaking revenge. On October 31, 1998, the TRC Final Report was
publicly released and I obtained a copy quickly and went to Kagiso. On pages 582-3
of Volume 3, Zandile learned for the first time who had applied for amnesty for the
murders and what the findings of the Commission were. In his case, the findings were
quite dramatic and revelatory since they were linked to amnesty applications:
The Commission finds a number of Security Branch operatives responsible for this
operation and, in particular, Brigadier Willem Schoon, the Head of the Security
Branch, who authorised the operation that led to the commission of gross human
rights violations. The Commission finds further that Mr. Christian Siebert Rorich,
Mr. Abraham Grobbelaar, Mr. Joe Mamasela and Mr. Ephraim Mfalapitsa were
responsible for carrying out the operation, for the deaths of the three COSAS
members and the gross violation of human rights.
The Commission finds the former state, the Minister of Police, the Commissioner
of Police and the Head of the Security Branch responsible for the gross violation
of human rights. The Commission finds that, through their actions, the former state
is vicariously responsible for criminal conduct in that it secured these deaths
through extra-judicial means.
Musi had only ever known of the actions of Ephraim and Mamasela, and learned for
the first time about the involvement of three white Security Branch police officers.
Zandiles immediate response was to say, Those people did not apply for amnesty
for reconciliation, only because they knew what would happen. They would be
prosecuted. Then he asked me who I thought he should sue; the individuals who had
applied for amnesty or the Ministry of Safety and Security as the institution held
criminally responsible. The hostility of the relatives of the dead comrades was even
greater than that of Musi. Bimbos sister Maide said: It is still unbelievable for me
that he died. I am still angry. If I see Ephraim, then I would have to kill him. I hate
that person.
married man. Growing resentment among women was supported by the ANC Youth
League, whose members also chafed at the bit of elder male control. In the 1980s,
popular courts run by ANC comrades had generated a large part of its constituency
from women who were unhappy with gerontocratic township courts, and this political
axis reemerged in Boipatong in the late 1990s.
In his decision, the magistrate accused the Africans of practicing jungle justice (Vaal
Vision Oct. 23, 1998), illustrating how the present legal regime bears many
continuities with apartheid legality. What was novel however, was how the magistrate
invoked human rights in his decision. Human rights discourse would not have been
articulated in a case like this before 1994-indeed the case would probably have never
come to the District Court at all but would have been referred to a section of the black
administrative system.
Local residents sought to appeal to human rights also, saying that beating women was
against the new Bill of Rights in the South African Constitution. However, digging a
little deeper, residents seemed to be wrapping local moralities within human rights
discourse. They also stated that men beating women was against traditional African
culture, but that men beating other men was acceptable both within tribal law and
human rights. Many Boipatong residents, including two women beaten by the court,
continued to support the existence of the kgotla and to recommend that it continue
beating young, male miscreants. The moral language ofcustomary norms rather than
written positivized rules, of a morality that demanded that men respect and physically
protect women, even through a punitive township court, was still relatively intact, but
had now been repackaged within a new language of human rights. These discursive
associations seemed quite superficial, and may be little more than a new idiom for a
much more established language of justice and morality. Rights talk is vague enough
to cloak a variety of claims and entitlements (which may not be rights-derived at all),
and because of this human rights provided the idiom for urban Africans to enter an
old-style Afrikaner magistrates court, which many boycotted as a symbol of
apartheid only five years earlier.
The Mahlangu case reinforces my assertion that human rights presently serve a
centralizing project, drawing local ideas and institutions of justice into the state, and
expelling all that does not fit. Ms. Mahiangu was supported by the members of the
Boipatong Community Policing Forum, and the van der Biji Park magistrate in his
sentencing judgment instructed the kgotla members to stop their nonsense and join
the Community Policing Forum instead. The policing forums were set up in 1994 by
the new government as a way of making the police seem more accountable and
legitimate and to eradicate township courts and vigilantes by drawing them into
formal structures. In Boipatong, the policing forum and the kgotla functioned side by
side, but the deep structural crisis of criminal justice in South Africa meant that such
co-existence was unstable and the state has acted in a number of ways to centralize
and unify its authority.
In 1999, the Boipatong kgotla still limped along, holding only a few meetings a week,
and refusing to hear domestic cases. It confined its hearings to theft and assault cases,
and it had at least temporarily stopped beating those found guilty. Despite their
district magistrates indignation, van der Biji Park police have kept working closely
with the kgotla, which is now more prone to just hand over suspects to the police
without trying or sentencing them. Thus, despite having been battered by one arm of
the state, the urban court is at another level even more integrated into the state
rights assumptions of the institution. They may have their own values (e.g. on the
death penalty, or reconciliation) to such an extent that we might speak of a dual legal
consciousness. Victims therefore participate for their own reasons, some of which
mesh with the new institutions and language of human rights, whereas others diverge
sharply. This divergence seems to be working less at the level of conscious resistance
than a sheer lack of awareness of attention to, and even interest in the values which
victims were supposed to subscribe to. So while it is clear that there is a hegemonic
project around human rights which the TRC pursued in tandem with other state
institutions, it is not at all clear that the reception of the main targeted constituency
(urban, ANC-supporting blacks) conforms to the intended pattern. On television or at
the hearings it might all seem to work nicely, but listening to what victims are saying
during in-depth interviews can take us to an unexpected place that is between (or,
perhaps, beyond) both acceptance and resistance.
If many urban blacks attending TRC hearings are only pragmatically acquiescent, and
many others, as we will see, actively resist the dominant human rights ideology, then
what was the point of the TRCs hegemonic project? Again, neo-Weberian sociology
reverses conventions and argues that ideology does have important effects, but these
are primarily upon the dominant rather than the subordinate classes. Hill (1990:2)
writes that What has been important for the stability of capitalism is the coherence of
the dominant class itself, and ideology has played a major role in securing this.
In thinking about human rights in democratising countries in the 1990s, researchers
need to preserve the idea that many states engage in centralizing efforts to resolve
their hegemonic crises, but we can no longer accept that there is always an inherent
asymmetry between centralizing and pluralizing processes. Instead of the stark
polarity of dominance and resistance which reduces the complexities of a historically
produced political-legal context, we must turn our attention to shifting patterns of
dominance, resistance, acquiescence, and avoidance which occur simultaneously. As
we have seen in Boipatong, local courts are both connecting up with policing
structures and bypassing them in order to exercise a certain degree of autonomy to
judge and punish. The Boipatong imbizo was simultaneously working with the van der
Biji Park police, while being prosecuted and sentenced by the magistrate who told
them, in the name of human rights, to cease their activities and join the Community
Police Forum. There are multiple connections between state institutions, religious
organizations and local courts, to the extent that we see a splintering of the unified
fields of state and society, and an eradicating of their hard boundaries.
Diverse social fields in African countries are too complex and emergent to be
constrained by any explanation which sees law and society as a priori structural
categories to be understood by a single explanatory framework. Instead of two
coherent unified systems which are locked in a structurally determined struggle, we
see combinations of actors and collective groups who are involved in the production
of norms and who create new historical experiences and experiences of history. The
direction of social change in post-apartheid South Africa, what Touraine (1995) refers
to as historicity, is the product of the social action of individuals and collective
actors (political parties, local courts, religious organizations etc.) engaged in the
reflexive self-production of society.
The post-apartheid South African regime is in an agonizing process of state
reformation; its ANC ministers are unifying, consolidating infrastructure, and
desperately trying to transform institutions such as the police, prisons and
Outputs
Publications
Reconciliation and Revenge in South Africa: rethinking legal pluralism and human
rights. Current Anthropology. Volume 41, Number 1, February, 2000.
Trauma, Liminality and Symbolic Closure: the legacy of political violence in South
Africa. Co-authored with Brandon Hamber, in Edward Cairns (ed.) Forthcoming
1999. Social Memory in Post-Conflict Situations. Proceedings of the American
Psychological Association. London: MacMillan.
Human Rights and Globalization: Local Justice and the Truth and Reconciliation
Commission in South Africa. Forthcoming, 2000. In Suad Joseph (ed.) Women,
Human Rights and Islam. Berkeley: University of California Press.
Justice and Legitimacy in the South African Transition. In Alexandra de Brito and
Carmen Gonzalez (eds.) Forthcoming. 2000. The Politics of Memory: Three Decades
of Transitional Truth and Justice. Oxford: Oxford University Press.
I am presently writing a book entitled The Politics of Truth and Reconciliation in
South Africa. A proposal is being considered by the Law and Society series of
Cambridge University Press and a manuscript will be delivered by December 15,
1999.
Impacts
I was fortunate to be able to provide advice to those shaping British foreign policy,
when asked to appear before the Commons Select Committee on International
Development at the Palace of Westminster on December 1, 1998. The committee was
considering issues of Reconciliation and Reconstruction in Post-Conflict Countries
and the final report included large sections of transcripts from my session.
Citations
Abercrombie, N., S. Hill and B.S. Turner. 1980 The Dominant Ideology Thesis.
London: Allen and Unwin
Abercrombie, N., S. Hill and B.S. Turner. (eds) 1990. Dominant Ideologies. London:
Unwin Hyman.
Buzzoli, Belinda. 1998. Public Ritual and Private Transition: the Truth
Commission in Alexandra Township, South Africa 1996, African Studies Vol. 57,
No.2.
Conley, John and W. OBarr. 1990. Rules versus Relationships: the ethnography of
legal discourse. Chicago: University of Chicago Press.
Hill, Stephen. 1990. Britain: the Dominant Ideology Thesis After a Decade. In
Abercrombie, N., S. Hill and B.S. Turner. (eds) 1990. Dominant Ideologies. London:
Unwin Hyman.
Merry, Sally Engle. 1988. Legal Pluralism Law and Society Review 22 (5): 869-901.
1990. Getting Justice and Getting Even: legal consciousness
among working class Americans. Chicago: University of Chicago Press.
Touraine, Alain. 1971. The Post-Industrial Society. Tomorrows social history. class,
conflict and culture in programmed society. Tr. Leonard Fox Mayhew. New York:
Random House, 1995. Critique of Modernity. Oxford: Blackwell.
Truth and Reconciliation Commission Report of South Africa Report. Vol. 1-5. 1998.
Cape Town: Juta and Co. Also on Internet site http://www.truth.org.za/