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The legislation that gave birth to the Truth and Reconciliation Commission provides for the possibility of amnesty to the perpetrators of certain crimes and delicts. It also provides for the possibility of reparations to the victims of apartheid who suffered as a result of their human rights being grossly violated. The problem with the legislation is that it is only competent to deal with matters falling within its ambit, but there are numerous issues that still need to be addressed which clearly fall outside of it. One might be tempted to say that such issues falling beyond the scope of the TRC mandate should then be dealt with according to the ordinary principles governing the legal relationship between those who suffer a loss and those that cause their loss. But the difficulty is that the unjust benefits and wrongful burdens imposed and facilitated by apartheid are effectively passed on from generation to generation. The descendants of apartheid’s victims continue to suffer a grave disadvantage. And in addition to this it is not only the actual perpetrators of the abuses that have benefited from apartheid but also later generations of white South Africans and corporations who continue to enjoy unequal advantage to springboard themselves ahead of black competitors who are still, for the most part, shackled by the disadvantage of apartheid. Whilst the state has made significant efforts to address the imbalance in society, and in the process accepted a tremendous burden, no meaningful effort has yet come from civil society and the unjust profiteers of the apartheid system. In this paper, we have attempted to confront some of these difficult issues. This article explores the possibility of converting the moral justification that seeks to hold these unjust profiteers liable into legal argument:

  • “They were conquerors — nothing to boast of, when you have it, since your strength is just an accident arising from the weakness of others. They grabbed what they could get for the sake of what was to be got. It was robbery with violence, aggravated murder on a grand scale” (From Conrad’s Heart of Darkness).
  • “The United Party comes and whines ‘the constitution’. Anyone listening would think that the constitution was of greater importance to them than the maintenance of white civilization in our country” (Loubscher, National Party MP, 1952).

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