TRC Final Report

Volume 1

Chapter 7

Subsection 2

12 Thus, he noted, the alternative to granting immunity could well have the effect of keeping relatives of victims ignorant of what happened, thereby perpetuating:

their legitimate sense of resentment and grief and correspondingly [allowing] the culprits of such deeds to remain perhaps physically free but inhibited in their capacity to become active, full and creative members of the new order (para 18).

13 Judge Mahomed noted that amnesty was a crucial component of the negotiated settlement itself, without which the interim Constitution would not have come into being. If the court kept alive the prospect of continuous retaliation and revenge, the agreement of those threatened by its implementation would never have been forthcoming (para 19). The Court held that amnesty for civil liability was also permitted by the postamble (para 2), again because the absence of such an amnesty would constitute a disincentive for the disclosure of the truth.

14 The court held that the postamble permitted the granting of an amnesty for any civil liability to the state, entitling Parliament to adopt a wide concept of reparations. This would allow the state to decide on proper reparations for victims of past abuses, having regard to competing demands on the limited resources of the state. Further, Parliament was authorised to provide for individualised and nuanced reparations that took into account the claims of all victims, rather than preserving state liability for provable and unprescribed delictual claims only. In this regard, Judge Mahomed noted, the families of those whose fundamental human rights were invaded by torture and abuse were not the only victims who have endured “untold suffering and injustice in consequence of the crass inhumanity of apartheid which so many have had to endure for so long”. Indeed:

Generations of children born and yet to be born will suffer the consequences of poverty, of malnutrition, of homelessness, of illiteracy and disempowerment generated and sustained by the institutions of apartheid and its manifest effects on the life and living for so many (para 43). The election made by the makers of the Constitution was to permit Parliament to favour “the reconstruction of society” involving in the process a wider concept of “reparation”, which would allow the state to take into account the competing claims on its resources but, at the same time, to have regard to the “untold suffering” of individuals and families whose fundamental human rights had been invaded during the conflict of the past (para 45).

15 The negotiators of the interim Constitution and the leaders of the nation were thus compelled to make hard choices and “were entitled to permit a different choice to be made between competing demands inherent in the problem”.

16 The Court held, therefore, that the postamble authorised the granting of amnesty to bodies, organisations or other persons who would otherwise have been vicariously liable for acts committed in the past. Without the granting of amnesty, the truth might not be told. Indeed, the interim Constitution itself might not have been negotiated had amnesty not been provided for.

17 The application was dismissed by the Constitutional Court on the 25 July 1996.

Application for an interdict to restrain the Commission from granting amnesty

18 Before the delivery of the above judgement, the applicants - namely AZAPO, Ms Biko, Mr Mxenge and Mr Ribeiro - brought a further application seeking an urgent order from the Court directing that the respondents be interdicted and restrained from granting amnesty to any person pending the outcome of the Constitutional Court decision.

19 On 25 April 1996, the Commission gave an undertaking that it would not grant any amnesties pending the finalisation of the application. However, the other functions and processes of the Amnesty Committee would continue in the interim.

20 On 9 May 1996, the court dismissed the application. It found that there was sufficient indication that the word ‘amnesty’ intended in the Postamble of the interim Constitution included the conferring of immunity in respect of civil liability in addition to criminal liability. It found, further, that the applicants had established neither a clear right nor a prima facie (face value) right to an interdict.