Azanian Peoples Organisation (AZAPO) and Others v President of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J, Sachs J
• Judgment Date: 25 July 1996
• Court: Constitutional Court
• Docket Number: CCT 17/96
• Date: 25 July 1996
• Hearing Date: 30 May 1996
• Counsel: D H Soggot SC (with him G M Khoza) for the applicants. G J Marcus (with him D G Leibowitz) for the respondents.
• Citation: 1996 (4) SA 671 (CC)

Mahomed DP: A

[1] For decades South African history has been dominated by a deep conflict between a minority which reserved for itself all control over the political instruments of the State B and a majority who sought to resist that domination. Fundamental human rights became a major casualty of this conflict as the resistance of those punished by their denial was met by laws designed to counter the effectiveness of such resistance. The conflict deepened with the increased sophistication of the economy, the rapid acceleration of knowledge and education and the ever increasing hostility of an C international community steadily outraged by the inconsistency which had become manifest between its own articulated ideals after the Second World War and the official practices which had become institutionalised in South Africa through laws enacted to give them sanction and teeth by a Parliament elected only by a privileged D minority. The result was a debilitating war of internal political dissension and confrontation, massive expressions of labour militancy, perennial student unrest, punishing international economic isolation, widespread dislocation in crucial areas of national endeavour, accelerated levels of armed conflict and a dangerous combination of anxiety, frustration and anger among expanding proportions of the populace. The E legitimacy of law itself was deeply wounded as the country haemorrhaged dangerously in the face of this tragic conflict which had begun to traumatise the entire nation.

[2] During the eighties it became manifest to all that our country, with all its natural F wealth, physical beauty and human resources, was on a disaster course unless that conflict was reversed. It was this realisation which mercifully rescued us in the early nineties as those who controlled the levers of State power began to negotiate a different future with those who had been imprisoned, silenced, or driven into exile in G consequence of their resistance to that control and its consequences. Those negotiations resulted in an interim Constitution [1] committed to a transition towards a more just, defensible and democratic political order based on the protection of H fundamental human rights. It was wisely appreciated by those involved in the preceding negotiations that the task of building such a new democratic order was a very difficult task because of the previous history and the deep emotions and indefensible inequities it had generated; and that this could not be achieved without a firm and generous commitment to reconciliation and national unity. It was realised that much of the unjust consequences of the past could not ever be fully reversed. It might be necessary in crucial areas to close the book on that past. I

[3] This fundamental philosophy is eloquently expressed in the epilogue to the Constitution, which reads as follows:

'National Unity and Reconciliation

This Constitution provides a historic bridge between the past of a deeply

Mohomed DP

A divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.

The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society. B

The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge. C

These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation.

In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political D objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date, which shall be a date after 8 October 1990 and before 6 December 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed.

With this Constitution and these commitments we, the people of South Africa, open a new chapter in the history of our country.'

E Pursuant to the provisions of the epilogue, Parliament enacted during 1995 what is colloquially referred to as the Truth and Reconciliation Act. Its proper name is the Promotion of National Unity and Reconciliation Act 34 of 1995 ('the Act').

[4] The Act establishes a Truth and Reconciliation Commission. The objectives of that Commission are set out in s 3. Its main objective is to 'promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of F the past'. It is enjoined to pursue that objective by 'establishing as complete a picture as possible of the causes, nature and extent of the gross violations of human rights' committed during the period commencing 1 March 1960 to the 'cut-off date'. [2] For this purpose the Commission is obliged to have regard to 'the perspectives of the victims and the motives and perspectives of the persons responsible for the commission of the G violations'. [3] It also is required to facilitate

'. . . the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective . . [4] H

The Commission is further entrusted with the duty to establish and to make known 'the fate or whereabouts of victims' and of 'restoring the human and civil dignity of such victims' by affording them an opportunity I

Mohomed DP

A to relate their own accounts of the violations and by recommending 'reparation measures' in respect of such violations [5] and, finally, to compile a comprehensive report in respect of its functions, including the recommendation of measures to prevent the violation of human rights. [6]

[5] Three committees are established for the purpose of achieving the objectives of the B Commission. [7] The first committee is the Committee on Human Rights Violations which conducts enquiries pertaining to gross violations of human rights during the prescribed period, with extensive powers to gather and receive evidence and information. [8] The second committee is the Committee on Reparation and Rehabilitation which is given similar powers to gather information and receive evidence C for the purposes of ultimately recommending to the President suitable reparations for victims of gross violations of human rights. [9] The third and the most directly relevant committee for the purposes of the present dispute is the Committee on Amnesty. [10] This is a committee which must consist of five persons of which the chairperson must be a D Judge. [11] The Committee on Amnesty is given elaborate powers to consider applications for amnesty. [12] The Committee has the power to grant amnesty in respect of any act, omission or offence to which the particular application for amnesty relates, provided that the applicant concerned has made a full disclosure of all relevant facts and provided further that the relevant act, omission or offence is associated with a E political objective committed in the course of the conflicts of the past, in accordance with the provisions of s 20(2) and (3) of the Act. [13] These subsections contain very detailed provisions pertaining to what may properly be considered to be acts 'associated with a political objective'. Subsection (3) of s 20 provides as follows:

F 'Whether a particular act, omission or offence contemplated in ss (2) is an act associated with a political objective, shall be decided with reference to the following criteria:

(a)

The motive of the person who committed the act, omission or offence;

(b)

G the context in which the act, omission or offence took place, and in particular whether the act, omission or offence was committed in the course of or as part of a political uprising, disturbance or event, or in reaction thereto;

(c)

the legal and factual nature of the act, omission or offence, including the gravity of the act, omission or offence;

Mohomed DP

(d)

A the object or objective of the act, omission or offence, and in particular whether the act, omission or offence was primarily directed at a political opponent or State property or personnel or against private property or individuals; B

(e)

whether the act, omission or offence was committed in the execution of an order of, or on behalf of, or with the approval of, the organisation, institution, liberation movement or body of which the person who committed the act was a member, an agent or a supporter; and

(f)

the relationship between the act, omission or offence and the political objective pursued, and in particular the directness and proximity of the relationship and the proportionality of the act, omission or offence to the objective pursued, C

but does not include any act, omission or offence committed by any person referred to in ss (2) who acted -

(i)

for personal gain: Provided that an act, omission or offence by any person who acted and received money or anything of value as an informer of the State or a former State, political organisation or liberation movement, shall not be excluded only on the grounds of that person having received money or anything of value for his or her information; or D

(ii...