Du Preez and Another v Truth and Reconciliation Commission

• Jurisdiction: South Africa
• Judge: Corbett CJ, Corbett CJ, E M Grosskopf JA, Eksteen JA, Marais JA, Olivier JA
• Judgment Date: 18 February 1997
• Citation: 1997 (3) SA 204 (A)
• Docket Number: 426/96
• Hearing Date: 22 November 1996
• Counsel: Penzhorn (for the first appellant) in reply Moerane (for the second appellant) in reply
• Court: Appellate Division

Corbett CJ:

The respondent in this appeal, the Truth and Reconciliation Commission F ('the Commission'), was established by the Promotion of National Unity and Reconciliation Act 34 of 1995 ('the Act'). In terms of s 3 of the Act the objectives of the Commission are to promote national unity and reconciliation by (i) establishing as complete a picture as possible of the causes, nature and extent of the gross violations G of human rights which were committed during the period 1 March 1960 to 6 December 1993; (ii) facilitating the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective; (iii) establishing and making known the fate or whereabouts of victims of the violation of human rights and by restoring the human and civil dignity of such victims by granting H them an opportunity to relate their own accounts of the violations of which they are the victims and by recommending reparation measures in respect of them; and (iv) compiling a report providing a comprehensive account of the activities and findings of the Commission and containing recommendations of measures to prevent the future violation of human rights. I

The Act also establishes (in s 3(2)) three committees: the Committee on Human Rights Violations, the Committee on Amnesty and the Committee on Reparation and Rehabilitation. The names indicate the general sphere of the respective duties and functions of each of these Committees. This appeal is concerned with the activities of the Committee on Human Rights Violations ('the Committee'). J

Corbett CJ

The powers, duties and functions of the Committee are to achieve the objects of the A Commission by, inter alia (see s 14 of the Act),

(i)

instituting inquiries into gross violations of human rights; the identity of all persons, authorities, institutions and organisations involved in such violations; the question whether such violations were the result of deliberate planning on B the part of the State or of any political organisation, liberation movement or other group or individual; and accountability for any such violation;

(ii)

gathering information and receiving evidence which establish the identity of the victims of such violations, their fate or present whereabouts and the nature and extent of the harm suffered by them; and C

(iii)

recording allegations and complaints of gross violations of human rights.

At the conclusion of its functions the Committee is required to submit to the Commission a comprehensive report of all its activities and findings. D

On Thursday, 11 April 1996, the chairperson of the Commission addressed to the Commissioner, South African Police Services, a letter which read as follows:

'Dear Sir

Re Brigadier Jan Du Preez E

We have been advised that the above person is/was in the employ of the Ministry of Safety and Security and at the relevant time based at Security Police Headquarters in Pretoria.

In terms of s 30 of the Promotion of National Unity and Reconciliation Act 34 of 1995, we hereby serve notice on you that a witness will testify before the Human Rights Violations Committee of the Truth and Reconciliation F Commission between 15 and 18 April 1996 at the City Hall, East London. A written statement was previously submitted to us by the aforementioned witness and the substance of the allegations made against the said person is contained in annexure A attached hereto. The relevant section of the Act is also annexed hereto, marked annexure B, for your information. In terms of the G said section, we invite the abovementioned person to submit written representations to us, no later than 30 days from the date of this letter.

Please attend to this matter and forward this letter to the abovementioned person. Should the abovementioned person no longer be in the employ of the Ministry of Safety and Security, kindly advise us as a matter of urgency. Kindly further let us have the present address of the said person. H

Yours faithfully.'

Annexure A to this letter read:

'The allegations against Brigadier Jan Du Preez are that he was involved in or had knowledge about the poisoning and disappearance in Port Elizabeth in 1981/2 of a person whose family has approached the Commission for I assistance. We understand that he was acting as a member of the South African Police at the time. The case is expected to be heard at the Commission's hearings in East London next week.'

Annexure B does not form part of the record before us, but evidently it consisted of a copy of s 30 of the Act, about which more anon. J

Corbett CJ

The Brigadier Jan du Preez referred to in these documents is the first appellant in the A proceedings before us. He retired from the South African Police on 31 July 1982 and at the time when this letter was sent was living in Pretoria.

Also on Thursday, 11 April 1996, the chairperson of the Commission addressed to the B Commissioner, South African Police Services, a letter in substantially the same terms as the letter concerning the first appellant but this time headed 're Colonel Nick van Rensburg', who is described in the letter as a person who

'. . . is/was in the employ of the Ministry of Safety and Security and at the relevant time based in Port Elizabeth, probably with the Security Police'. C

Attached to this letter was an annexure A in terms identical (save for the name Colonel Nick van Rensburg in place of Brigadier Jan du Preez) to the annexure A to the letter concerning the first appellant and also, apparently, a copy of s 30 of the Act.

The Colonel Nick van Rensburg here referred to is the second appellant in these D proceedings. At the time of the letter he was living in retirement at Hartenbos, in the Southern Cape. On 8 March 1996 he had suffered a burst appendix and had thereafter been hospitalised for three weeks, two of them in intensive care. As at 11 April 1996 he was convalescing and was under doctor's orders not even to drive a motor car. E

On Saturday, 13 April 1996, the first appellant received the letter concerning him from a General J van der Merwe, a former Commissioner of the South African Police. He instructed an attorney, Mr J H Wagener of Wagener, Muller and Du Plessis, practising F in Pretoria, to reply to the letter. Mr Wagener received similar instructions from second appellant. On the same day Mr Wagener wrote to the chairperson of the Commission referring to the letters of 11 April 1996, which 'purport' to be notices in terms of s 30 of the Act, and stating:

'My clients are of the opinion that the said letters do not comply with the said section, and for the reasons set out hereunder, you are hereby formally requested to postpone for a reasonable time the matter in which they are to be implicated (reference NO EL 34): G

1.

Annexure A to the said letters are vague in the extreme and my clients are unable to identify the incident of which they are about to be accused by some unknown witness.

2.

My clients have had no opportunity whatsoever to investigate this matter so as to be able to protect their fundamental rights, and will not be in a position to do so before 15 April 1996. H

3.

The procedure presently adopted by your Commission is a procedurally unfair action as contemplated in s 24(b) of the Constitution of the Republic of South Africa Act 200 of 1993.' I

Mr Wagener's letter went on to demand that the addressee thereof should indicate before 10:00 on Sunday, 14 April 1996, whether the proceedings would be postponed as requested; to demand that his clients be provided with copies of all statements in the Commissioner's possession pertaining to the matter; and threatening legal action should this postponement not be granted. This letter was transmitted by telefax.

At 07:45 on Sunday, 14 April 1996, Mr Wagener was telephoned by J

Corbett CJ

the vice-chairperson of the Commission, who informed him that because of logistical A problems ('logistieke probleme') the Commission was not in a position to reach a decision before 10:00 and asked that the matter be held over to 12:00. After a later request for further time the vice-chairperson eventually (at 13:10) informed Mr Wagener that the final decision was that the Commission would not accede in any way to the appellants' requests. B

On 15 April 1996 the appellants launched an urgent application in the Cape of Good Hope Provincial Division citing the Commission as respondent and claiming, in substance, an order interdicting the Commission from proceeding to hear the matter C involving the appellants before (a) proper, reasonable and timeous notice had been given of (i) the Commission's intention to hear evidence in the matter which would detrimentally implicate the appellants and of (ii) the relevant facts of the matter; and before (b) appellants had been given access to relevant documentary evidence. The application was opposed by the Commission. The application came before King J who D (on 30 April 1996) gave judgment in appellants' favour and issued an order in the following terms (appellants being referred to as 'applicants' and the Commission as 'respondent'):

'It is ordered:

1.

E That respondent, through its Committee on Human Rights Violations, is interdicted and restrained from receiving or allowing evidence during its hearings which would affect first and/or second applicants unless and until

(a)

respondent has given proper, reasonable and timeous notice to applicants of respondent's intention to hear evidence to be presented by any person in respondent's case, reference EL 34 - or in any event - F whereby applicants may be detrimentally implicated or prejudicially affected, and of the time and place of such proposed hearing;

(b)

respondent has...