TRC Final Report

Volume 1

Chapter 7

Subsection 1

Volume ONE Chapter SEVEN

Legal Challenges

■ INTRODUCTION

1 In the two and a half year period of the Truth and Reconciliation Commission’s existence, it faced a number of legal challenges. At a macro level, the application filed on behalf of the Azanian Peoples Organisation (AZAPO), the Biko, Mxenge and Ribeiro families against the Government of South Africa, challenging the constitutionality of the amnesty provisions, struck at the heart of the Amnesty Committee’s very existence. The Constitutional Court judgement upholding the amnesty provisions allowed the Amnesty Committee to begin its task, secure in the knowledge that there could be no further legal challenge to its existence.

2 Once the public hearings of the Commission commenced, a series of applications were launched by Brigadier Du Preez and Major General Van Rensburg against the Commission in the Cape High Court regarding the provisions of section 30 of the founding Act. These culminated in a judgement by the Appellate Division. This judgement had a profound effect on shaping the policy and procedures of the Commission.

3 From then onwards, the Commission faced a barrage of litigation, including an application from the National Party (NP) seeking the censure of the chairperson of the Commission and the removal from office of the vice-chairperson. A further application from the NP in the Cape High Court sought an order that amnesty decisions handed down by the Amnesty Committee in respect of thirty-seven African National Congress (ANC) members be declared void. Another political party, the Inkatha Freedom Party (IFP) filed a complaint with the Public Protector about its perceived treatment by the Commission. A group of South African Defence Force (SADF) generals also filed a complaint with the Public Protector complaining of bias by the Commission.

4 The Commission also faced challenges from perpetrators in respect of amnesty decisions.

5 One of the interesting legal challenges arose in the Chemical and Biological Hearing when Dr Wouter Bassoon, the project leader, who had been subpoenaed to give evidence, launched an application in the Cape High Court contending that his rights in terms of section 35 of the interim Constitution would be infringed if he was compelled to testify. The High Court ruled that he should testify.

6 During its lifetime, the Commission was so often involved in litigation that one could be forgiven for thinking that it was under siege. All of these matters are dealt with in detail in this chapter.

■ CHALLENGING THE CONSTITUTIONALITY OF THE ACT

The Azanian Peoples Organisation, Ms NM Biko, Mr CH Mxenge and Mr C Ribeiro v the President of the Republic of South Africa, the Government of the Republic of South Africa, the Minister of Justice, the Minister of Safety and Security, and the Chairperson of the Commission, in the Constitutional Court¹.

7 The case was significant for a number of reasons. The applicants applied for direct access to the Constitutional Court and for an order declaring section 20(7) of the Promotion of National Unity and Reconciliation Act (the Act) unconstitutional. The effect of section 20(7), read with other sections of the Act, is to permit the Amnesty Committee to grant amnesty to a perpetrator of an act associated with a political objective and committed before 6 December 1993 (later changed to 10 May 1994). A perpetrator cannot be criminally or civilly liable for an act or acts for which he or she has received amnesty. Similarly, neither the state nor any other body, organisation nor person that would ordinarily have been vicariously liable for such act can be liable in law.

8 In a judgement delivered by the Deputy President of the Constitutional Court, Judge Mahomed, the court unanimously upheld the constitutionality of the section. In doing so, it acknowledged that the section limited the applicants’ right in terms of section 22 of the interim Constitution to “have justiciable disputes settled by a court of law, or ... other independent or impartial forum”. However, it held that, in terms of section 33(2) of the interim Constitution, violations of rights are permitted either if they are sanctioned by the interim Constitution itself or if they are justified in terms of subsection 1 of the limitations clause (section 33(1)).

9 The Court held that the postamble, which was part of the interim Constitution² , sanctioned the limitation on the right of access to court. Amnesty for criminal liability was permitted by the postamble because, without it, there would be no incentive for offenders to disclose the truth about past atrocities.

10 Judge Mahomed said that he understood why the applicants wished to:

insist that wrongdoers who abused their authority and wrongfully murdered and maimed or tortured very much loved members of their families who had, in their view, been engaged in a noble struggle to confront the inhumanity of apartheid, should vigorously be prosecuted and effectively be punished for their callous and inhuman conduct in violation of the criminal law (para 16).

11 However, he argued that there was good reason to believe that the granting of amnesty might assist in uncovering the truth about the past, thus assisting in the process of reconciliation and reconstruction.

Much of what transpired in this shameful period is shrouded in secrecy and not easily capable of objective demonstration and proof. Loved ones have disappeared, sometimes mysteriously, and most of them no longer survive to tell their tales. Secrecy and authoritarianism have concealed the truth in little crevices of obscurity in our history. Records are not easily accessible; witnesses are often unknown, dead, unavailable or unwilling. All that often effectively remains is the truth of wounded memories of loved ones sharing instinctive suspicions, deep and traumatising to the survivors but otherwise incapable of translating themselves into objective and corroborative evidence which could survive the rigours of the law.

The Act seeks to address this massive problem by encouraging these survivors and the dependants of the tortured and the wounded, the maimed and the dead, to unburden their grief publicly; to receive the collective recognition of a new nation that they were wronged and, crucially, to help them to discover what did in truth happen to their loved ones, where and under what circumstances it did happen, and who was responsible (para 1). That truth, which the victims of repression seek so desperately to know is, in the circumstances, much more likely to be forthcoming if those responsible for such monstrous misdeeds are encouraged to disclose the whole truth with the incentive that they will not receive the punishment which they undoubtedly deserve if they do (para 17).