Du Preez and Another v Truth and Reconciliation Commission

• Jurisdiction: South Africa
• Citation: 1997 (3) SA 204 (A)

Du Preez and Another v Truth and Reconciliation Commission
1997 (3) SA 204 (A)

1997 (3) SA p204

Citation	1997 (3) SA 204 (A)
Case No	426/96
Court	Appellate Division
Judge	Corbett CJ, Corbett CJ, E M Grosskopf JA, Eksteen JA, Marais JA, Olivier JA
Heard	November 22, 1996
Judgment	February 18, 1997
Counsel	Penzhorn (for the first appellant) in reply; Moerane (for the second appellant) in reply

Flynote : Sleutelwoorde D

Maxims — Audi alteram partem — Applicability of — Applicable whenever statute empowers public official or body to do act or give decision prejudicially affecting person in his liberty, property or rights or when such person has legitimate expectation entitling him to hearing unless statute indicating contrary — Contrary view requiring maxim, if it is to apply, to be impliedly incorporated in statute discarded. E

Maxims — Audi alteram partem — Scope of — Audi principle but one facet of general requirement of natural justice that public official or body to act fairly — Duty to act fairly concerned only with manner in which decisions taken, and not relating to whether decision itself fair or not.

Constitutional law — Truth and Reconciliation Commission established by F Promotion of National Unity and Reconciliation Act 34 of 1995 — Procedure — Rights of persons implicated — Section 30(2) of Act — Commission and its Committee on Human Rights Violations under duty to act fairly towards persons detrimentally implicated before Committee — In addition to being afforded opportunity to submit representations or give evidence before G Commission, such persons entitled to reasonable and timeous notice of time and place when implicatory evidence will be presented to Committee — Nothing in Act expressly or by implication restricting or negating general duty to act fairly and particularly to give reasonable and timeous notice.

Constitutional law — Truth and Reconciliation Commission established by H Promotion of National Unity and Reconciliation Act 34 of 1995 — Procedure — Rights of persons implicated — Section 30(2) of Act — Commission and its Committee on Human Rights Violations under duty to act fairly towards persons detrimentally implicated before Committee — Person detrimentally implicated before Commission entitled to be informed of substance of I allegations against him or her with sufficient detail to know what case is all about — What is sufficient information depending upon facts of each case — Provisions of s 28(5) and s 29(5) of Act not pre-cluding disclosure of such information to person implicated — Order to disclose such information not to compel Commission to disclose identity of witness where such contrary to guidelines contained in s 11, particularly s 11(e) of Act. J

1997 (3) SA p205

Constitutional law — Truth and Reconciliation Commission established by A Promotion of National Unity and Reconciliation Act 34 of 1995 — Procedure — Rights of persons implicated — Section 30(2) of Act — Quaere: whether paras (a), (b) and (c) of s 30(2) to be read conjunctively or disjunctively.

Headnote : Kopnota

The formulation of the audi alteram partem principle treats the principle as a rule of natural justice which comes B into play when circumstances stated in that dictum exist (ie 'whenever a statute empowers a public official or body to do an act or give a decision prejudicially affecting an individual in his liberty or property or existing rights, or C whenever such an individual has a legitimate expectation entitling him to a hearing, unless the statute expressly or by implication indicates the contrary) and is contrary to the view which requires the audi principle, if it is to apply, to be impliedly incorporated by the statute in question. The latter view has been discarded. (At 231D-E.)

The audi principle is but one facet, albeit an important one, of the general requirement D of natural justice that in the circumstances postulated the public official or body concerned must act fairly. The duty to act fairly, however, is concerned only with the manner in which decisions are taken: it does not relate to whether the decision itself is fair or not. (At 231F/G-H.)

On a proper interpretation of s 30, and particularly s 30(2), of the Promotion of National Unity and Reconciliation Act 34 of 1995, the Truth and Reconciliation E Commission and its Committee on Human Rights Violations are under a duty to act fairly towards persons implicated to their detriment by evidence or information coming before the Committee in the course of its investigations and/or hearings. The subject-matter of inquiries conducted by the Committee is 'gross violations of human F rights'. Many such violations would have constituted criminal conduct of a serious nature, or at any rate very reprehensible conduct. The Committee is charged with the duty of establishing, inter alia, whether such violations took place and the identity of persons involved therein. The Committee's findings in this regard and its report to the Commission may accuse or condemn persons. Subject to the grant of amnesty, the G ultimate result may be criminal or civil proceedings against such persons. Clearly the whole process is potentially prejudicial to them and their rights of personality. They must be treated fairly. (At 233B/C-E.)

Section 30(2) requires that persons detrimentally implicated should be afforded the opportunity subsequently to submit representations to or to give evidence before the H Commission. But that does not exhaust the requirements of fairness. Fairness requires that reasonable and timeous notice of the time and place when evidence affecting a person detrimentally or prejudicially will be presented to the Commission. (At 233E-G.) There is nothing in the Act itself which, expressly or by implication, restricts or negates the general duty to act fairly and in particular the duty to give reasonable and timeous notice. (At 234D.) I

Procedural fairness demands not only that a person implicated be given reasonable and timeous notice of the hearing, but also that he or she is at the same time informed of the substance of the allegations against him or her, with sufficient detail to know what the case is all about. What is sufficient information would depend upon the facts of each individual case. (At 234H-I.) J

1997 (3) SA p206

Sections 28(5) and 29(5) of the Act deal with the making public of information A obtained by an investigating unit and access by persons outside the Commission to such information. A private disclosure of information to a person implicated would not amount to making that information 'public' as envisaged by those provisions. And, in B any event, the subsections would not prevent a determination to disclose information to such a person in this way nor do they override the common-law obligation to act fairly or as precluding the Commission, in the discharge of that obligation, from giving relevant information to the person implicated. (At 235E/F-G.)

An order by a Court which would result in compelling the Commission to disclose the identity of a witness in circumstances where such disclosure would be contrary to the C guidelines contained in s 11 of the Act, particularly those in s 11(e), would go too far. (At 235I/J-J.)

Quaere: Whether paras (a), (b) and (c) of the Promotion of National Unity and Reconciliation Act 34 of 1995 should be read conjunctively or disjunctively. (At 227J-228B.)

The decision in the Cape Provincial Division in Truth and Reconciliation Commission v Du Preez and Another 1996 (3) SA 997 reversed. D

Cases Considered

Annotations

Reported cases

The following decided cases were cited in the judgment of the Court:

Administrator, Cape, and Another v Ikapa Town Council 1990 (2) SA 882 (A)

Administrator, Transvaal, and Others v Traub and Others 1989 (4) SA 731 (A)

Attorney-General, Eastern Cape v Blom and Others 1988 (4) SA 645 (A)

Doody v Secretary of State for the Home Department and Other Appeals [1993] 3 All ER 92 (HL) E

Knop v Johannesburg City Council 1995 (2) SA 1 (A)

Re Pergamon Press Ltd [1970] 3 All ER 535 (CA)

R v Monopolies and Mergers Commission, Ex parte Elders IXL Ltd [1987] 1 All ER 451 (QB) F

R v Ngwevela 1954 (1) SA 123 (A)

R v Secretary of State for the Home Department, Ex parte Hickey and Others (No 2) and Other Appeals [1995] 1 All ER 490 (QB)

R v Secretary of State for Trade, Ex parte Perestrello and Another [1980] 3 All ER 28 (QB)

South African Defence and Aid Fund and Another v Minister of Justice 1967 (1) SA 263 (A)

South African Roads Board v Johannesburg City Council 1991 (4) SA 1 (A) G

Truth and Reconciliation Commission v Du Preez and Another 1996 (3) SA 997 (C)

Van Huyssteen and Others NNO v Minister of Environmental Affairs and Tourism and Others 1996 (1) SA 283 (C).

Statutes Considered

Statutes

The following statute was considered by the Court: H

The Promotion of National Unity and Reconciliation Act 34 of 1995, ss 11, 28(5), 29(5), 30: see Juta's Statutes of South Africa 1996 vol 1 at 2-408, 2-413.

Case Information

Appeal from a decision in the Cape Provincial Division (Friedman JP, Van Zyl J and Farlam J), reported at 1996 (3) SA 997. The facts appear from the judgment of Corbett CJ. I

L J L Visser SC (with him B Knoetze) for the appellants: Die Hof van eerste instansie het tereg aanvaar dat die bewyslas op die respondent gerus het om die regverdigingsgronde en die reg om hom daarop te beroep, te bewys op 'n oorwig van waarskynlikhede. Mabaso v Felix 1981 (3) SA 865 (A); Ramsay v Minister of Police 1981 (4) SA 802 (A) op 807F; Botha v Lues 1983 (4) SA 496 (A) op 502B; Minister of Law and J

1997 (3) SA p207

Order and Others v Hurley and Another 1986 (3) SA 549 (A) op 587H; Joubert A en 'n Ander v Venter 1985 (1) SA 654 (A) op 697E; Veldhuizen NO v...