Some procedural issues relating to post-TRC prosecutions of human rights offenders

JurisdictionSouth Africa
Published date24 May 2019
AuthorMervyn E Bennun
Citation(2003) 16 SACJ 17
Date24 May 2019
Some procedural issues relating to
post-TRC prosecutions of
human rights offenders
The concept of amnesty is new in South African law, and some of the implications of
this are considered with regard to the discretionary decision to prosecute human
rights offenders who either did not apply for an amnesty for human rights abuses, or
who applied and were refused. One of these implications is the admissibility of
proceedings before the Truth and Reconciliation Commission in subsequent criminal
trials of such persons. Accordingly, the legal effects of amnesty proceedings under the
Promotion of National Unity and Reconciliation Act, 1995 are considered, and the
extent to which the rule in
Hollington v Hewthorn & Co Ltd
would apply to findings by
the TRC. The conclusion is reached that this rule is now of limited or no application,
and that the record of findings by the TRC may accordingly constitute important
incriminating evidence which is available to a criminal court hearing cases arising
from human rights violations. The availability of this evidence will affect the exercise
of the discretion to prosecute.
There are serious problems relating to the prosecution of alleged human
rights offenders in the post-TRC period. Amnesties having been granted to
many of those who applied, the question must ultimately be faced about the
prosecution of those who either did not apply or who, if they did, were
unsuccessful. This article is an attempt to explore certain of those issues, in
the hope that it will assist the consideration of what is to be done.
At the outset the point must be made that the Promotion of National Unity
and Reconciliation Act
clearly envisages the prosecution of alleged human
rights offenders. Indeed, the concept of amnesty makes no sense unless it is
linked to a credible alternative that a person who has not successfully applied
for an amnesty may be prosecuted as explained in
President of the
BA LLB (Cape Town) LLM (London)
Honorary Research Associate, School of Law, University
of Cape Town.
I am grateful to the School of Law for its generous hospitality, and to Professor
Hugh Corder (its Dean), Professor P J Schwikkard, and Associate-Professor Francois du Bois
for comments and conversations while I was working on this article. Needless to say, its
defects are my responsibility alone.
Promotion of National Unity and Reconciliation Act 34 of 1995.
(2003) 16 SACJ 17
© Juta and Company (Pty) Ltd
(2003) 16
There is only one prosecution process in South Africa, and the Act does
not envisage that someone who did not qualify for an amnesty under the
falls to be treated in any way differently from anyone else who may be
investigated and prosecuted, whether or not that person may have been
linked in some way to the historical events with which the Act is concerned.
The decision to prosecute is a discretionary one taken according to the
policies which the Constitution requires
the National Directorate of Public
Prosecutions to draw up and publish.
The decision is not always an easy
one to take, though the principles involved are clear enough. The initial
issues to be resolved by the Directorate are whether to request further
investigation by the police, or to institute a prosecution, or to decline to
prosecute. In the last-mentioned case it is possible to link the decision with
what the policy document describes as a 'non-criminal resolution'.
difficulties which may arise are reflected by the policy document:
"The decision whether or not to prosecute must be taken with care, because it may
have profound consequences for victims, witnesses, accused and their families. A
wrong decision may also undermine the community's confidence in the
prosecution system.
Resources should not be wasted pursuing inappropriate cases, but must be used to
act vigorously in those cases worthy of prosecution.
In deciding whether or not to institute criminal proceedings against an accused,
prosecutors should assess whether there is sufficient and admissible evidence to
provide a reasonable prospect of a successful prosecution. There must indeed be a
reasonable prospect of a conviction, otherwise the prosecution should not be
commenced or continued.'
Having determined that there is 'sufficient and admissible evidence' to enable
a prosecution to proceed with reasonable confidence, the policy document
makes it clear that cases may be 'inappropriate' for prosecution for reasons
other than a lack of evidence. It seems that the sufficiency of evidence is to
be regarded as the dominant issue for the document states that in such a case
'a prosecution should normally follow, unless public interest demands
otherwise.' The policy document states:
"There is no rule in law which states that all the provable cases brought to the
attention of the Prosecuting Authority must be prosecuted. On the contrary, any
1996 (8) BCLR 1015 (CC).
The past tense is used as no further amnesties are possible.
Section 179(5).
National Prosecuting Authority of South Africa, 'Prosecution Policies' available at
National Prosecuting Authority of South Africa op cit (n5) 'Criteria governing the division (sic)
to prosecute' at 3.
© Juta and Company (Pty) Ltd

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