Du Toit v Minister for Safety and Security

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 18 August 2009
• Citation: 2010 (1) SACR 1 (CC)
• Docket Number: No 91/08
• Hearing Date: 24 February 2009
• Counsel: JG Cilliers SC (with MD du Preez) for the applicant. TJ Bruinders SC (with BL Makola) for the respondents.
• Court: Constitutional Court

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Introduction F

[1] This matter concerns the reach of amnesty granted under the provisions of the Promotion of National Unity and Reconciliation Act 34 of 1995 (Reconciliation Act). The issue raised is the effect of amnesty on consequences flowing from a criminal conviction and sentence. In the G particular circumstances of this case, the question is how the amnesty provisions relate to other legislation governing the employment of members of the South African Police Service (SAPS).

[2] The court is required to consider one of the initial and most profound challenges to our democracy, namely, the granting of amnesty H to the perpetrators of crime committed with a political purpose during the dark days of apartheid. As it has done once before, [1] the court has to grapple with the question of how to balance the varying interests involved in this difficult area of the law.

Parties

I [3] The applicant is Mr Wybrand Andreas Lodewicus du Toit, formerly employed as the National Commanding Officer, Technical Support

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Services, in the SAPS with the rank of Director. The first respondent is A the Minister for Safety and Security, cited in his capacity as the minister in charge of the SAPS. The second respondent is the National Commissioner of the SAPS (National Commissioner), appointed in terms of s 207 of the Constitution, and charged with the control and management of the SAPS.

Background

[4] The applicant, while in the employ of the SAPS, was convicted on four counts of murder in the Eastern Cape High Court, Port Elizabeth, and was sentenced to 15 years' imprisonment on 27 June 1996. The C murder of the four deceased, otherwise collectively known as the 'Motherwell Four', was politically motivated. A consequence of the conviction and the sentence on the four counts was that in terms of the provisions of s 36(1) of the South African Police Service Act 68 of 1995 (SAPS Act), Mr Du Toit was deemed to have been discharged from his employment with the SAPS, effective from the date following the date D of sentence. Section 36 reads as follows:

'(1) A member who is convicted of an offence and is sentenced to a term of imprisonment without the option of a fine, shall be deemed to have been discharged from the Service with effect from the date following the date of such sentence: Provided that, if such term of E imprisonment is wholly suspended, the member concerned shall not be deemed to have been so discharged.

(2) A person referred to in subsection (1), whose -

(a)

conviction is set aside following an appeal or review and is not replaced by a F conviction for another offence;

(b)

conviction is set aside on appeal or review, but is replaced by a conviction for another offence, whether by the court of appeal or review or the court of first instance, and a sentence to a term of imprisonment without the option of a fine is not imposed upon him or her following on the conviction for such other offence; or

(c)

sentence to a term of imprisonment without the option of a fine is set aside following an appeal or review and is replaced with a G sentence other than a sentence to a term of imprisonment without the option of a fine,

may, within a period of 30 days after his or her conviction has been set aside or his or her sentence has been replaced by a sentence other than a sentence to a term of imprisonment without the option of a fine, apply to the National Commissioner to be reinstated as a member. H

(3) In the event of an application by a person whose conviction has been set aside as contemplated in subsection (2)(a), the National Commissioner shall reinstate such person as a member with effect from the date upon which he or she is deemed to have been so discharged.

(4) In the event of any application by a person whose conviction has I been set aside or whose sentence has been replaced as contemplated in subsection (2)(b) and (c), the National Commissioner may -

(a)

reinstate such person as a member with effect from the date upon which he or she is deemed to have been so discharged; or

(b)

cause an inquiry to be instituted in accordance with section 34 into the suitability of reinstating such person as a member. J

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A (5) For the purposes of this section, a sentence to imprisonment until the rising of the court shall not be deemed to be a sentence to imprisonment without the option of a fine.

(6) This section shall not be construed as precluding any administrative action, investigation or inquiry in terms of any other provision of this Act with respect to the member concerned, and any lawful decision B or action taken in consequence thereof.'

[5] The applicant appealed against his conviction to the Supreme Court of Appeal. The matter was postponed pending finalisation of his application for amnesty, which he had lodged in the interim with the Committee on Amnesty, a body established under s 16 of the Reconciliation C Act. The application for amnesty was refused, but the decision of the Committee on Amnesty was subsequently set aside on review by the Western Cape High Court, Cape Town. The applicant was later granted amnesty in respect of all four counts of murder. Mr Du Toit was informed of the success of his application on 23 December 2005.

D [6] Before amnesty was granted, the applicant wrote to the National Commissioner of the SAPS to ask whether, if his application was successful, he would be reinstated to his position in the SAPS. This enquiry, to which the National Commissioner responded in the affirmative on 29 December 1999, was based on the applicant's interpretation of s 20(10) of the Reconciliation Act, which provides as follows:

E '(10) Where any person has been convicted of any offence constituted by an act or omission associated with a political objective in respect of which amnesty has been granted in terms of this Act, any entry or record of the conviction shall be deemed to be expunged from all official documents or records and the conviction shall for all F purposes, including the application of any Act of Parliament or any other law, be deemed not to have taken place: Provided that the Committee may recommend to the authority concerned the taking of such measures as it may deem necessary for the protection of the safety of the public.'

[7] On 23 December 2005 the applicant informed the National G Commissioner that he had been granted amnesty and that he was seeking to be reinstated. The Chief of Staff of the SAPS refused to reinstate the applicant, contending that his situation was not contemplated in s 36(2) of the SAPS Act and that s 20 of the Reconciliation Act did not provide for reinstatement of employees whose employment had been terminated H in terms of s 36.

[8] The North Gauteng High Court, Pretoria, refused Mr Du Toit's application to compel the SAPS to reinstate him, and his subsequent appeal to the Supreme Court of Appeal was dismissed with costs on 30 September 2008. The applicant now seeks the leave of this court to I appeal against the judgment of the Supreme Court of Appeal. [2] The respondents jointly oppose the application.

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Issues

[9] The applicant's case is based on three contentions which also formed A the main thrust of his submissions before the North Gauteng High Court and the Supreme Court of Appeal. The contentions may be summarised as follows:

(i)

Section 20(10) of the Reconciliation Act is remedial in nature and B should be given a wide and generous interpretation. It has a retrospective effect not only on the applicant's conviction and sentence, but also on their consequences. In the context of the Reconciliation Act and the constitutional provision for national unity, amnesty is all-encompassing, and has the effect of nullifying the applicant's discharge from the SAPS as a result of his conviction C and sentence. The applicant relied on this court's judgment in AZAPO in which Mahomed DP interpreted the meaning of amnesty to be necessarily wide and, in that case, to include indemnity from civil claims for damages. [3] He contended that s 20(9), which specifically excludes the undoing of civil judgments, is an indication of D the purpose of the legislation to exclude retrospectivity only when this is specifically indicated. On that reasoning, the applicant argued that he is entitled to be reinstated with effect from the date of his discharge on 28 June 1996.

(ii)

The applicant argued that reference to 'appeal or review' in s 36(2) E of the SAPS Act should be read to include a successful application for amnesty. He contended that there should be no difference between the consequences of the grant of amnesty and those that follow a successful appeal or review. In this case, the effect must be the reversal of the applicant's discharge from his position in the SAPS. He submitted that the failure to equate appeal or review with F amnesty in this case would mean that the applicant is in a worse position than if he had elected to continue with his application for appeal, which result cannot be sanctioned by the Reconciliation Act.

(iii)

The applicant's third and final contention concerned the agreement G by the National Commissioner, by letter, that the applicant would be reinstated to his position in the SAPS should amnesty be granted. The Chief of Staff of the SAPS then refused to reinstate the applicant. The applicant contended that the agreement by the National Commissioner is binding on the SAPS.

[10] The respondents argued firstly that the appeal does not raise a H constitutional matter because none of the questions before the Supreme Court of Appeal involved constitutional issues. The appeal concerns common-law principles of statutory interpretation, contract and the principle that remedial statutes be construed generously. [4] I

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