TRC Final Report

Volume 1

Chapter 11

Part OtherDepts

Subsection 13

■ LEGAL MATTERS DEFENDED BY THE COMMISSION

3 The Legal Department represented the Commission in the following legal cases.

4 Azanian People’s Organisation (AZAPO), the Biko, Mxenge and Ribeiro families v State President, Minister of Safety and Security and the Truth and Reconciliation Commission (Constitutional Court Case No CCT17/96). In their application, AZAPO and the Biko, Mxenge and Ribeiro families asked the Constitutional Court to declare the Act establishing the Commission as unconstitutional, or alternatively, to declare as unconstitutional those sections that dealt with the granting of amnesty (sections 20(7), 20(8) and 20(10)). The Court dismissed the application and declared the relevant sections not unconstitutional.1

5 Azanian People’s Organisation (AZAPO), the Biko, Mxenge and Ribeiro families v the Truth and Reconciliation Commission and Others (Case No 4895/96). In this application, AZAPO and the Biko, Mxenge, and Ribeiro families applied to the High Court (Cape Provincial Division) for an order staying the Commission from granting amnesty, pending the outcome of their application to the Constitutional Court. The High Court dismissed their application in a judgement dated 9 May 1996.

6 The National Party v Desmond Tutu, Alex Boraine, the Truth and Reconciliation Commission, the Minister of Justice and the State President (Case No 8034/97). Following alleged public criticism by the chairperson of the Commission of the evidence presented by the National Party (NP) to the Commission, the NP applied to the High Court (Cape Provincial Division) for an order declaring that the he had behaved in a manner unbecoming of a chairperson of the Commission; that the vice-chairperson be held to be unfit to be a commissioner, and that the Commission should conduct its investigations impartially. The chairperson was away when the application was made. His return coincided with the appointment of the new leader of the NP. At that time, both parties expressed an eagerness to settle, which led to a meeting on the 19 September 1997. The matter was settled², each party bearing its own costs.

7 Gerber v Amnesty Committee, Truth and Reconciliation Commission (Case No 21544/96) and Van Wyk v Amnesty Committee, Truth and Reconciliation Commission (Case No 16602/97). In two separate cases, individuals asked the High Court (Transvaal Division) to review and set aside the Amnesty Committee’s decisions to refuse their amnesty applications. Gerber’s application was dismissed with costs. Van Wyk’s application was still pending at the time of finalising this report.

8 Leonard Veenendal v Minister of Justice, the Truth and Reconciliation Commission and the Government of Namibia (Case No 24709/96) and DG Stopforth v the Minister of Justice, the Truth and Reconciliation Commission, the Government of Namibia and the Minister of Safety and Security (Case No 25042/96). In these two related cases, former members of the security forces applied to the High Court (Transvaal Division) for an order staying the Minister of Justice’s decision to have them extradited to face criminal charges in Namibia, pending the outcome of their amnesty applications to the Commission. Although the Commission was cited as the second respondent, it did not oppose the application but simply undertook to abide by the court’s decision. The High Court dealt with the two cases as one and dismissed the applications with costs.