Inkatha Freedom Party and Another v Truth and Reconciliation Commission and Others

• Jurisdiction: South Africa
• Judge: Davis J
• Judgment Date: 15 December 1999
• Citation: 2000 (3) SA 119 (C)
• Docket Number: 6879/99
• Hearing Date: 11 November 1999
• Counsel: J Newdigate for the first respondent. No appearance for the second and third respondents.
• Court: Cape Provincial Division

Davis J:

Introduction I

Second applicant is the national president of first applicant. Since he was installed as the chief executive officer of the Zululand Territorial J

Davis J

Authority in 1970 he has been a major figure on the South A African political landscape. To the extent that there may have been any doubt, he describes himself in the founding affidavit to this application as

'a senior minister in the national government . . . on occasions I have in fact acted as President of South Africa. . . . I have represented South Africa at national gatherings and . . . I have the honour to lead the first applicant which not only at present controls B the provincial government but in terms of its national support is one of the largest political organisations in South Africa. . . . Over the years I have been the recipient of a number of awards and honours, both nationally and internationally, as a result of my efforts both to abolish apartheid and to bring about a negotiated settlement to South Africa's political disputes.'

First respondent was established in terms of the Promotion of C National Unity and Reconciliation Act 34 of 1995 (the Act). The main objective of the Act is set out in s 3 as being to promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past. Section 3(1)(a) enjoins first respondent to establish as complete a picture as possible of the causes, nature and extent of the gross violations of D human rights committed during the period commencing 1 March 1960 to a cut-off date as defined. Pursuant to its statutory obligations, first respondent produced a comprehensive report ('the report') comprising of five volumes, which purports to be as detailed an account as possible of its activities and findings as well as the formulation of recommendations for measures to prevent future violations in terms E of s 3(1)(d). It is thus an institution which was considered crucial to the promotion of reconciliation and ubuntu in this country.

The report contains much that is adverse about the activities of both first and second applicant. In his founding affidavit second applicant described a number of these findings which, understandably, he F considers to be most damaging to both applicants. A summary of these findings is to be found in volume five of the report, which reads as follows:

'During the period 1982 - 94, the Inkatha Freedom Party, known as Inkatha prior to July 1990 (hereinafter referred to as the organistion), was responsible for gross violations of human rights committed in the former Transvaal, Natal and Kwazula against: G

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persons who were perceived to be leaders, members or supporters of the UDF, ANC, South African Communist Party (SACP) and Cosatu;

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persons who were identified as posing a threat to the organisation;

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members or supporters of the organisation whose loyalty was doubted.

It is a further finding of the Commission that such violations formed H part of a systematic pattern of abuse which entailed deliberate planning on the part of the organisation.

The Commission based this finding on the following actions of the IFP:

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speeches by the IFP president, senior party officials and persons aligned to the organisation's ideology, which had the effect of inciting supporters of the organisation to commit acts of violence; I

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arming the organisation's supporters with weapons in contravention of the Arms and Ammunition, and Explosives and Dangerous Weapons Acts;

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mass attacks by supporters of the organisation in communities inhabited by persons referred to above, resulting in death and injury and the destruction and theft of property;

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killing of leaders of the political organisations and persons referred to above; J

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collusion with the South African government's security forces A to commit the violations referred to above;

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entering into a pact with the SADF to create a paramilitary force for the organisation, which was intended to and did cause death and injury to the persons referred to above;

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establishing hit squads within the KZP and the special constable structure of the SAP to kill or cause injury to the persons referred to above; B

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under the auspices of the self-protection unit project, training large numbers of the organisation's supporters with the specific objective of preventing, by means of violence, the holding of elections in KwaZulu-Natal in April 1994 under a Constitution which did not recognise the organisation's demands for sovereignty in order to achieve this objective, the KwaZulu government and its KwaZulu police structures were subverted; C

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conspiring with right-wing organisations and former members of the South African Government's security forces to commit acts which resulted in loss of life or injury in order to achieve the objective referred to above;

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creating a climate of impunity by expressly or implicitly condoning gross human rights violations and other unlawful acts committed by members or supporters of the organisation. D

Chief M G Buthelezi served simultaneously as president of the IFP and as the Chief Minister of the KwaZulu government and was the only serving Minister of Police in the Kwazulu government during the entire 13-year existence of the Kwazulu Police. Where these three agencies are found to have been responsible for the commission of gross human rights E violations, Chief Mangosuthu Buthelezi is held by this Commission to be accountable in his representative capacity as the leader, head or responsible minister of the parties concerned.'

(Volume 5 at 233 - 4.)

These conclusions would damage anyone's reputation, particularly a key national figure such as second applicant. Understandably, second F applicant did not read these findings with a studied indifference. As he states in the founding affidavit:

'The Commission made defamatory findings regarding both myself and the first applicant which are, in my submission, unwarranted and unjustified and, so I believe, not supported by the information and evidence which was collected or received by it. In fact, I submit that no person applying his mind could reasonably have made such findings G and there is no rational connection between the apparently concealed premises and the conclusions.'

The way to launching an action for defamation in such a case is paved with a significant obstacle in the form of s 41(2) of the Act. It provides that no (a) commissioner; (b) member of the staff of the Commission; or (c) person who performs H any task on behalf of the Commission, shall be liable in respect of anything reflected in any report, finding, point of view or recommendation made or expressed in good faith and submitted or made known in terms of this Act.

On 3 November 1998 second applicant's attorney, Mr Falconer, wrote to first respondent informing it that his client had requested an investigation into certain aspects pertaining to the I compilation of findings as contained in the report. He then requested first respondent to supply a range of information 'to enable us to properly investigate the matters contained in the report and to enable our client an opportunity to exercise his rights'.

First respondent replied, seemingly in a spirit of co-operation. On J

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11 November 1998 its national legal officer, Hanif Vally, wrote A to Falconer explaining its difficulties. Vally informed Falconer that first respondent was 'busy winding down its activities and is presently shedding a number of staff'. He then requested a list of documentation that had been previously provided to second applicant so that it could enable it to

'focus our search and not unnecessarily duplicate documentation B which may already be in your client's possession. The documentation requested is voluminous and may have already been provided to your client.'

Falconer offered to peruse files to assist first respondent in searching for the outstanding material. Vally refused to permit this. On 24 November 1998 Vally repeated his request for co-operation on the part of second applicant as C

'we will be searching the archives in the event of us determining that there is further documentation your client is entitled to as well as making enquiries from our residual staff at our KwaZulu Natal office'.

On 8 December 1998 first respondent's attitude appeared to D harden. Advocate P C Prior, who had replaced Vally as national legal officer, wrote to the Mr Falconer stating that

'the prima facie view of the commissioners . . . is that the Commission is functus officio insofar as those findings are concerned. In addition hereto the view has been expressed that your client had the opportunity to request further particularity regarding the s 30(2) notices but did not do so within the time allocated.' E

Impasse had been reached. Applicants were determined to obtain information so that they could investigate and respond to the findings which I have outlined. First respondent appeared to have had a change of mind and was no longer offering to conduct a search of its archives. It appeared to have taken two points to justify its stance, F namely that the Commission itself was functus officio and that an opportunity pursuant to notices issued in terms of s 30(2) of the Act had been wasted by applicants who were accordingly not entitled to any further information.

Applicants have now approached this Court order in the following terms:

'1.

That the first respondent be directed to furnish to the G applicants copies of the following, alternatively make the following available to the applicants for inspection and copying:

(a)

a transcript of all the evidence presented to the first respondent's...