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Correspondents' Reports

JURIST's South Africa Correspondent is Professor Andries Cilliers. A Rhodes Scholar with law degrees from Stellenbosch, Oxford, and the University of South Africa, he practised as an advocate at the Cape Bar before becoming the first Dean of Law at the University of Port Elizabeth in 1969. He retired in 1993. He is author and co-author of books and articles, on the law of civil procedure and the law of costs in particular. During 1992-1993 he acted as an adviser to the Ciskei Government at the Conference for a Democratic South Africa, where the transitional Constitution of 1993 was drawn up; during 1994 and 1995 as a consultant for a political party in connection with the drawing up of a bill of rights for the "final" Constitution of 1996 by the Constitutional Assembly in Cape Town.
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[Stellenbosch; Special to JURIST] The policy of "apartheid" (separateness), introduced by the Nationalist Government on its assumption of power in 1948 initially denoted the concept of territorial division of South Africa between the different cultural groups comprising the population ("grand apartheid"). A few black "homelands" were created, but were not recognised by the international community.

When grand apartheid proved not only politically unacceptable to the vast majority of South Africans but also not economically feasible, the policy became more rigid, degenerating into a system in which political and social privileges in South Africa outside the black homelands were legally ensconced on the basis of race. This was "petty apartheid", exemplified by pass laws, job reservation, separate amenities for different races, residential "group areas", prohibition of marriage and sex across the colour line, etc.

In 1983 the franchise was extended to Coloured persons and Indians, but not to Black people.

The acceptance of the concept of human rights by the international community, especially since 1966, fuelled the struggle for political freedom of the oppressed masses in South Africa. The pacifist African National Congress, formed soon after Union in 1910, became more militant as the years passed. Violence against the white "establishment" erupted -- sporadically at first, but with increasing vigour later on.

The killing of 69 people by the security forces in 1969 (Sharpeville) and widespread riots by the Black youth in the Transvaal in 1976 were focal points of the "struggle".

Inter-racial conflict was exacerbated in the period 1980 to 1992. It was a feature of the social unrest and conflict in South Africa, however, that thousands of politically inspired killings took place between Blacks and Blacks of different cultural groups and different political persuasions (the ANC and the IFP, especially in Natal), and not between whites and Blacks.

International sanctions against South Africa eventually forced the National Party government to negotiate with the ANC for a peaceful transition to a democracy.

Former President F W de Klerk's epoch-making speech in Parliament on 2 April 1990 paved the way for the new South African constitutional dispensation, which was initiated by political negotiations at the Conference for a Democratic South Africa (CODESA), held at Kempton Park, Johannesburg, during 1992 and 1993.

An interim Constitution drafted at CODESA entered into force on 27 April 1994 (also the date of the first democratic election in South Africa), after it and related legislation (including a new Electoral Act) had been formally approved by the former Parliament.

The interim Constitution created a Constitutional Assembly (the newly elected members of Parliament), whose task it was to draw up a "final" Constitution. This provided political legitimacy for the final Constitution, which entered into force on 4 February 1997. In a radical departure from historical constitutional arrangements it conferred full political rights on all adult citizens.

The new dispensation introduced, among other things, the concept of a constitutional state, in which the Constitution would be supreme (as opposed to a sovereign Parliament), a bill of rights, and a Constitutional Court with the power to declare invalid not only administrative action (as was the case formerly) but also all legislation not complying with the Constitution.

The above-mentioned changes were effected pursuant to 24 "Constitutional Principles" agreed upon at CODESA and appended to the interim Constitution. These Principles encapsulated the basic concepts of western democracy. In terms of the interim Constitution the Constitutional Court eventually certified that the final Constitution (as amended once) complied with the Constitutional Principles.

Since 1994 Parliament has passed a number of laws implementing the skeletal provisions of the Constitution. One of these laws created the Truth and Reconciliation Commission (the "TRC"), dealt with below.

The Truth and Reconciliation Commission

The aim and essence of Act 34 of 1995

The TRC was established by parliamentary legislation (the Promotion of National Unity and Reconciliation Act, 34 of 1995, called "the Act" below) in December 1995, pursuant to the concluding provisions of the interim Constitution of 1993, which provided (in part) that the pursuit of national unity and peace required reconciliation between the people of South Africa and the reconstruction of society and that, to that end, "amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past." [Stress supplied.]

Members of the TRC would be "fit and proper persons who are impartial and who do not have a high political profile".

In terms of the Act (as amended) "[A]ny person" can apply for amnesty in respect of any act, omission or offence on the grounds that it is an act associated with a political objective (as defined) committed between 1 March 1960 to 11 May 1994 (when the new democratic government assumed office.)

The fundamental provision was to render mandatory the grant of amnesty to such "persons" for the above-mentioned acts, omissions or offences committed in the course of the conflicts of the past(as defined), provided that applicants for amnesty have made "a full disclosure of all relevant facts".

Amnesty, if granted, would lead to complete immunity from legal liability, criminally or civilly. Many of those who feared that the State might have sufficient evidence to indict them for crimes in the ordinary criminal courts applied for amnesty. In many cases amnesty was granted, on both sides of the political spectrum, i.e. in respect of both former agents of the apartheid regime and former members or supporters of liberation movements.

The attitude of the National Party and its office bearers as to evils perpetrated under its auspices

In a Second Submission to the TRC dated 23 March 1997 Mr F W de Klerk, leader of the NP (the National Party, i.e. the former government) said (p35):

"The National Party is prepared to accept responsibility for the policies that it adopted and for the actions taken by its office bearers in the implementation of those policies. It is, however, not prepared to accept responsibility for the criminal actions of a handful of operatives in the security forces of which the Party was not aware and which it would never have condoned. Neither is it prepared to accept responsibility for the actions of any office bearer who might have acted outside the mandate given him by the Party."
It is noteworthy that(to my knowledge) only a single former member of State President De Klerk's cabinet applied for (and was granted) amnesty, and no such member has been charged with any crime in a criminal court.

The attitude of the ANC to the question of amnesty

On 6 April 1999 the Amnesty Committee refused amnesty to 79 ANC members and leaders who in their application for amnesty collectively took responsibility for policy decisions that led to cadres committing human rights violations. "[I]t was made clear that none of the applicants had been involved in any individual action for which they would be required to seek amnesty" [TRC press release 6 April 1999]. The Amnesty Committee ruled that the applicants had not complied with the requirements of the Act and that the application accordingly failed.

This is a most unsatisfactory state of affairs. If the policy decisions excluded any basis for amnesty being granted to the applicants (ANC members and leaders), how can this be reconciled with the words: " ....the Commission contends that the leadership should have been aware of the consequences of training and arming members of SDUS [self-defence units] in a volatile situation in which they had little control over the actions of such members."( Final Report, volume 5, paragraph 138)

Applicants for amnesty and witnesses: the contrast

Although applicants for amnesty could not be coerced to apply, but had to do so voluntarily, unwilling witnesses could, in terms of the Act, be subpoenaed to testify. Former State President P W Botha was subpoenaed, but refused to testify orally (although he submitted lengthy written submissions to the TRC). Criminal proceedings against him based on this refusal were partially unsuccessful (for technical reasons), and seem to have petered out since.

It seems contrary to the spirit of the Act(although perhaps not to the letter) that an important political figure such as Mr Botha could be forced to testify as a witness in spite of the fact that he could not, in terms of the Act, be forced to apply for amnesty.

The TRC was critical of the judiciary, whose members were not prepared to give oral evidence before the TRC. Some judges did, however, make written submissions. It seems ironic, though, that judges of the Supreme Court were strenuously requested to appear as witnesses before the TRC, while the decisions of the TRC, a quasi-judicial body, are themselves in certain circumstances subject to judicial scrutiny by way of review by Supreme Court judges.

The final report of the TRC

The final report of the TRC, comprising five volumes, was handed to State President Nelson Mandela on 29 October 1999.

Some of the TRC's main findings, as paraphrased by Dr Anthea Jeffery, a special research consultant with the respected South African Institute of Race Relations ("SAIRR"), in her book The Truth about the Truth Commission, published in 1999, can be referred to here. She says:

"The TRC's primary finding was that the former National Party (NP) government had committed the 'predominant portion of gross violations' in the mandate period and had done so in collusion with the Inkatha Freedom Party (IFP). The NP government, together with the IFP, had engaged in activities of a criminal nature, including the extra-judicial killing of its political opponents." (P 161)

"The Commission also held the African National Congress (ANC) and the former United Democratic Front (UDF) accountable for certain violations", although "[the ANC's] policy had been to avoid civilian deaths". (p 162)

She also pointed out (pp 162-163) that the Commission had found:
  • that the ANC had also engaged in the extra-judicial killing of informers and was also accountable for the torture and, on occasion, the execution of suspected 'enemy agents and mutineers' in its camps in exile;
  • that, although 'it was not the policy of the UDF to attack and kill political opponents' ", such killings had nevertheless occurred;
  • that the Pan Africanist Congress (PAC) "had primarily targeted civilians for killing", which was not only a gross violation of human rights, but also a violation of international humanitarian law, and
  • that the white right wing had also engaged in gross violations against other parties and had had incited violence and attempted to mobilise for an insurrection.
(In the present context it should be noted that "gross violations of human rights" are defined in the Act as "the violation of human rights through -- ... the killing, abduction, torture or severe ill-treatment of any person", and certain related acts.)

Positive aspects of the TRC report

There can be no doubt, on the one hand, that in a number of cases the TRC achieved some of the main objects for which it had been created. In a spirit of reconciliation many evil deeds of the past were exposed and the perpetrators absolved from liability. Some, who had not been granted amnesty, were successfully prosecuted in the ordinary criminal courts and duly punished.

The objectivity and effectiveness of the TRC (the Amnesty Committee in particular): certain viewpoints

The Amnesty Committee was the focal point of the work of the TRC. As such it caused much public controversy.

One of the main criticisms levelled at the Amnesty Committee was that it was not always objective, but veered in the direction of regarding transgressions by members of the former freedom movements as morally less reprehensible than similar transgressions by members of the former ruling elite, and did not inquire into many alleged transgressions by the former.

In the context of the previous paragraph Minister Dullah Omar (in an interview published in the journal Die Suid-Afrikaan (September/October 1995, at p 12) said:

"There is no contradiction between me saying that everybody should be treated equally [before the Truth Commission], on the one hand, and on the other hand saying that you must recognise the morality, the legitimacy of the freedom struggle, and the immorality of the Apartheid order. ........ What I am saying is that the Commission will have to take into account the moral dimension. They will have to decide where to place the emphasis, or not."
The TRC itself in this context said, however, that "This does not mean that those who hold the high moral ground have carte blanche as to the methods they use" (volume 1, paragraph 54).

John Kane-Berman, Chief Executive of the SAIRR, in his Foreword to Dr Jeffery's book observed that the TRC reached its major conclusions about violations "..when some 90% of amnesty statements (on its own reckoning, a vital source of evidence) has still to be considered." (The Amnesty Committee is at present still functioning.) He also said: "Overall, the commission has done as much to distort as to disclose the truth", ascribing such distortions as arising mainly from the methods used and the aspects of violence it left out.

Another important criticism of the Amnesty Committee (often raised in public) was that in many instances there was no cross-examination or inadequate cross-examination of witnesses, with resultant failure to ascertain the truth (which was a prerequisite for reconciliation). I agree with this view.

Concluding remarks

Dr Jeffery's ultimate conclusion (at page 157) was the following:

"Far from being 'strong on truth', as the commission has claimed, it has produced a report which distorts as much as it discloses the truth. The full story about gross human rights violations in South Africa, and the violence that intensified as political and constitutional reform gathered momentum, has yet to be written."
Unfortunately, in my view, Dr Jeffery's general conclusion is justified.

Professor Andries Cilliers
JURIST South Africa Correspondent

Stellenbosch, SOUTH AFRICA

May 18, 2000

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