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

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Pages: 17-37
• Author: Mervyn E Bennun
• Citation: (2003) 16 SACJ 17
• Date: 24 May 2019

Some procedural issues relating to

post-TRC prosecutions of

human rights offenders

MERVYN E BENNUN*

ABSTRACT

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.

Introduction

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

1

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

AZAPO v

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.

1

Promotion of National Unity and Reconciliation Act 34 of 1995.

17

(2003) 16 SACJ 17

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18



SACJ •

(2003) 16

RSA.

2

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

Act

3

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

4

the National Directorate of Public

Prosecutions to draw up and publish.

5

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'.

6

The

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.'

7

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

2

1996 (8) BCLR 1015 (CC).

3

The past tense is used as no further amnesties are possible.

4

Section 179(5).

5

National Prosecuting Authority of South Africa, 'Prosecution Policies' available at

http://www.

ndpp.gov.za/prosAuth/ProsPolicy/introduction.asp.

6

Ibid.

National Prosecuting Authority of South Africa op cit (n5) 'Criteria governing the division (sic)

to prosecute' at 3.

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