Evita Bezuidenhout used to joke about the attitude of whites towards the Truth and Reconciliation Commission and the astonishing claims made by many white people that they really did not know that the government security services tortured and killed opponents of the apartheid state. Evita often said – referring to the Truth Commission – “the future is certain. It is the past that is unpredictable.”
But the past is not only unpredictable and ever changing – it is also something that continues to haunt our society and to bedevil attempts to find common ground between erstwhile oppressors and newly installed would-be oppressors. Despite the Truth and Reconciliation Commission, we have not really come to grips with how to deal with the past and in as much as we have, this is often used to justify present injustice and unethical behaviour. (“We have allowed the apartheid judges to remain on the bench, so why are you complaining about John Hlophe merely because he is a liar and a cheat. He never killed anyone or sent anyone to the gallows for political reasons.”)
Today the Constitutional Court handed down judgment in the case of Du Toit v Minister of Safety and Security and Another dealing with some of these difficult issues. Du Toit, who used to be a Director in the Police Services, was convicted for the murder of the Motherwell Four and sentenced to fifteen years imprisonment but he was finally awarded Amnesty in terms of the Truth and Reconciliation Commission Act in 2005. However, because of his conviction he was dismissed by the Police before applying for amnesty. He then approached the courts to try and compell the Police to reinstate him because of the fact that he was granted amnesty.
As Justice Langa points out in his judgment this case required the Constitutional Court to consider one of the initial and most profound challenges to our democracy, namely, the granting of amnesty to the perpetrators of crime committed with a political purpose during the dark days of apartheid. The Court was required to grapple with the question of how to balance the varying interests involved in this difficult area of the law. The main issue was whether the provisions of the TRC legislation regarding amnesty could apply retrospectively so as to nullify Du Toit’s sacking from the Police.
Personally I find this a very difficult issue to grapple with. While Amnesty might have been a worthwhile tool to achieve the emergence of some facts about our dark past, it resulted in terrible injustice allowing many perpetrators of gross human rights abuses to escape punishment for their heinous deeds. As Chief Justice Langa says in the judgment:
The grant of amnesty was, to a certain extent, a means to an end. Truth-telling is central to the development of a collective memory and in order for that truth to be told, amnesty was granted to those making disclosures about offences that they had committed. The amnesty process was an important mechanism that allowed those who otherwise would have had to deal with their convictions or secret guilt to come clean and be allowed to start their lives anew. The process was a necessary tool in a larger scheme of things….
Though the amnesty process may appear to be a device to facilitate forgiveness, closing the door on the past and moving on, it is also a pragmatic venture. It is often resorted to in the face of a political impasse that bears neither hope of certain resolution nor the avoidance of visceral strife. So it was with South Africa. …
While all this may be necessary for the reconciliation of a nation, the promise not to punish those who have flagrantly violated the law seems to be at odds with one of the basic features of the South African constitutional order: namely, the rule of law.
As the Constitutional Court made clear in the Azapo case, the granting of amnesty impacts upon fundamental rights. Every person is entitled to protection from unlawful invasions of his or her rights to life, security of the person and dignity, and, when those rights are infringed, to be able to approach a court for relief. The granting of amnesty takes away this entitlement. Said Langa J in the Du Toit case:
The process of reconciliation is an agonising one which requires give and take from all sides. The victim or family of the victim is able to hear the truth about the motives of the act and circumstances surrounding their suffering, and in return must accept that no criminal sanction will be forthcoming. At the same time, the perpetrator comes face to face with his or her conscience, and with the victim, and has to make a full disclosure. In return, the weight of the commission of the offence is lifted from the perpetrator’s shoulders with a guarantee of immunity from prosecution, a clean criminal record, and the assurance that never again can the conviction be counted against him or her.
In this context, the question was whether the granting of Amnesty had the effect of expunging not only the record of the conviction and sentence imposed on Mr Du Toit, but also all consequences that follow that conviction and sentence, past, present and future – including his firing by the SAPS. The Constitutional Court found that the effect of the granting of amnesty did not necessarily, by virtue of the sweeping language used in the TRC Act, extend to all of the consequences of the conviction and sentence and alter these consequences from a time prior to the granting of amnesty, or from the granting of amnesty itself.
In deciding exactly what the precise effects of the granting of Amnesty in terms of the TRC Act might have been, the court emphasised that “[t]he emerging trend in statutory construction is to have regard to the context in which the words occur, even where the words to be construed are clear and unambiguous.” This has been the consistent approach of this Court when interpreting statutes. The move away from the “plain words” of the statute is necessitated by the fact that the text of the Constitution and the legislation giving effect to its provisions is value-laden and “value can hardly be expressed in clear and unambiguous language.”
Making use of this contextual approach to interpreting the legislation, the Constitutional Court decided that although the provisions regarding Amnesty allow for the immediate suspension of any consequences for the criminal conduct, the provisions do not render steps lawfully taken before amnesty was granted unlawful. Nor do they undo certain legal consequences which were already complete by the time amnesty was granted. So, if a civil judgment has been granted, it will remain in force. If a portion of a sentence has been served, the sentence will lapse from the date of amnesty and will not be set aside from the date upon which the sentence was imposed.
Thus the Constitutional Court rejected Mr Du Toit’s claim against the SAPS and he will now not have to be reinstated by the SAPS. Although Du Toit was released from prison despite the fact that he had taken part in a heinous crime in support of apartheid, the Act did not require him to be reinstated by the SAPS. The Court thus provided a relatively restrictive interpretation of the effects of Amnesty to mitigate the injustice which otherwise might have resulted. For the families of the Motherwell Four, it might not help much to know that Mr Du Toit will not get his job back, but it does send a signal that the Amnesty process is a balanced one and that the granting of Amnesty does not completely wipe the slate clean regarding anyone’s past.
I, for one, would have felt extremely uneasy if the court had ruled that a murderer had the right to be re-employed by the SAPS because he had been granted Amnesty as part of the TRC process. It seems to me such a ruling would have constituted a fundamental attack on the Rule of Law and would not easily have been squared with our new constitutional ethos.
A good post prof, and I also agree with this restrictive intepretation otherwise an injustice was going to take place and in the process put a murderer back in the police services.
Let us also apply the same standards to Robert McBride. A convicted murderer and TRC beneficiary being appointed to Chief of Police? That is way more obscene then Du Tot asking for his job as a policeman back. Why do double standards apply to everything that the ANC does?
As for the con court, how balanced is it really? Every member is from the left. Hardly representitive of SA as a whole.
An excellent post Pierre. It sits well with me.
Mother Theresa // Aug 18, 2009 at 3:22 pm
I doubt you have read the judgment. If I’m right, do yourself a favour and find out why there are no double-standards in the 2 scenarios you are referring to.
Mr du Toit must just wait for the Sunday Newspapers to advertise vacancies in the SAPS and if there’s one that he likes, submit his application like everyone else. Whi knows, with Pres JZ being so friendly to everyone and making an effort to meet the Afrikaans communities, he might even get to be appointed in McBride’s position..:)
Legalities aside, I think Mr du Toit is going to struggle with securing a job in the public service. It might be a different story in the private sector where he might know someone who knows someone. Infact, this is one guy I would perfectly understand if he wanted to move to Australia – or wherever people move when they don’t find a job. I wonder if he would have received his pension money?
Can someone tell on what grounds was Mr Du Toit denied reinstatement into the Police Services anyway?
Don’t worry, I found it … well in the Prof’s post anyway.
“However, because of his conviction he was dismissed by the Police before applying for amnesty. He then approached the courts to try and compel the Police to reinstate him because of the fact that he was granted amnesty’.
So in essence the judgment says that the amnesty protected you from prosecution with regard to the specific crimes you committed (which was on condition on how truthful you were in your submissions) but not from the latent consequences. Such as in this case, your old livelihood back and stigma that will remain. Correct?
Mother Theresa, your post seems to me to go to the heart of the previous discussion on racism as it presupposes a moral equivalence between the acts of the oppressor and the oppressed. If we agree with your view then, of course, we must ignore the context in which objectively evil deeds are done and must judge all deeds we disagree with as morally equivalent. The discrimination of white against black then becomes morally equal to the discrimination of black against white. I do not think one can equate what McBride did when he planted a bomb during the struggle against an evil regime with what Du Toit did. If I had to hold that position I would also have to morally equate what Hitler did with what the Allies did in WWII when it bombed Dresden to a pulp, killing hundreds of thousands of civilians, or unleashed a nuclear bomb on Hiroshima and Nagasaki. Although I believe Dresden and Hiroshima and Nagasaki were morally deeply problematic, I would find it difficult to equate the deeds of Hitler with that of the Allies. In my opinion, the context require us to judge these deeds differently – even when we believe the killing of civilians in a time of war is unacceptable. I happen not to be a fan of McBride but not because he planted a bomb in which civilians were killed, but rather because he later turned out to be a thug and a dishonest man. He was fired because of this.
In any event, your post demonstrates very well the difficulty we have in South Africa to come to terms with our past. How does one deal with bad things that happened in the past where one side fought a just war against an unjust oppressor? My view is that one should not deal with it by equating the bad things done by the ANC with the bad things done by the apartheid government as that in itself would be ethically deeply problematic. At the same time one should not avoid confronting the fact that bad things were indeed done by both sides.
An issue which often arises in a western labor arbitration, when a dismissed employee is appealing a dismissal, is whether the circumstances of the former employee’s behavior leading to dismissal was such that current employees would find it difficult to work comfortably with the dismissed employee returning. It carries significant weight.
On another note, re amnesty and forgiveness and the recent conflab about Bashir, isn’t it possible that some folk, like our mad bob for example, simply don’t deserve compassionate justice. Is it not an injustice to their victims that we turn our backs on their suffering by asking forgiveness?
Pierre, your response to Mother Theresa is incisive.
Re the justness of the “Struggle,” I think the rectitude of the liberation movements was badly compromised by accepting support from regimes like the SU and PRC. These were both regimes arguably even ghastlier than the Nats. Nevertheless, I agree with you that postulating moral equivalence between the liberation movements and apartheid govt is wholly misguided – if only because the former lacked the capacity to inflict as much suffering as the latter.
But history will ultimately judge the justice of the struggle in light of how South Africa turns out over the next few years. If the rule of law is steadily eroded, the rate of poverty and unemployment continues its steady rise, and the post-liberation government is dominated by the white business elite and the enriched BEE/AA comprador class, it may become quite difficult in retrospect to insist that the struggle , with all its sacrifices, was just and worthwhile.
I fully agree Prof…..just to digress a bit Prof – is it correct for the oppositition parties to gang-up against the President of the country to do his sole prerogative in terms of section 174 of the Constitution? I understand they (opposition(s)) have written a common “open” letter advocating for Moseneke DCJ to be appointed CJ. What are your views on this one Prof?
Actually, Pierre, I knew quite a few whites who really, truly, did not know that security services tortured and killed opponents of the apartheid state. This is no a tribute to their rectitude, rather a symptom of staggering ignorance. (Perhaps “reckless disregard,” in some cases, but genuine innocence in others.)
Slightly off topic but would be good to see a post discuss this -
http://www.news24.com/Content/SouthAfrica/News/1059/f99a18ebda444ca285209275bf896a08/19-08-2009-09-28/Blow_for_affirmative_action
More people are dying in detention now than during aparthied (on an yearly basis). In some way we still do not know, and don´t want to know what is going on.
Michael Osborne // Aug 19, 2009 at 10:28 am
What did they think was happening when the police were shooting those kids in June 16 or in other township before and after that. Or they just thought it was law enforcement and did not see anything wrong with the police using live fire to shoot at those black people?
I can accept the ignorance for the torture (which would probably be done in those far away farms) but the killing was there for all to see. I find that hard to believe that anyone can claim not to have been aware of all the killings!!
Kameraad Mhambi // Aug 19, 2009 at 11:05 am
Assuming the report is correct (hahaha), I really think it is high time that the government officials and some decision makers in the private sector actually read and understand the EE Act. It is ridiculous to deny white people jobs and promotions and leave the positions vacant. That’s not what the Act and the Constitution says or contemplates.
I agree with Mzo thats total ignorance
Mzo, re white igorance pre 1994, you would be amazed how many people never, ever, read a newpaper.. Effectively, the only alternative source of “news” was the SABC, which was even less reliable then than it is now.
And Kameraad is right — even now, many of us prefer not to dwell on the daily atrocities in SA prisons. What excuse will we have?
hold on Mzo,
one also needs to get facts straight the security forces where not all to blame for the killings
Taking from the Truth and Reconciliation Commission
21,000 people died in political violence in South Africa during apartheid – of whom 14,000 people died during the six-year transition process from 1990 to 1994.
This includes SA Defence Force actions, for instance the 600 deaths at Kassinga in Angola during the war in 1978.
Of those deaths, the vast majority, 92%, have been primarily due to Africans killing Africans such as the inter-tribal battles for territory
The period June 1990 to July 1993 indicates a total of 8580 (92%) of the 9,325 violent deaths during the period June 1990 to July 1993 were caused by Africans killing Africans,hostel killings, Inkatha Freedom Party versus ANC killlings, and taxi and turf war violence.
The activities of the Civil Cooperation Bureau as outlined by the Truth and Reconciliation Commission, were also included in these figures.
The security forces caused 518 deaths (5.6%) throughout this period.
also during apartheid the black population grew from 3.5 million to 35-million
The average life expectancy of African South Africans was only 38 years before apartheid from the apartheid the average life span rose to 64 due to medical aid and agriculture
Moreover, infant death rates had by then also been reduced from 174 to 55 infant deaths per thousand, higher than Europe’s, but considerably lower than the rest of the African continent’s.
A total of 174,220 people died violent deaths, from crime-related violence, between 1994 and the year 2000. Thats black and white
So the question Mzo did the security forces of apartheid kill as many people as you are led to believe? and compared to the slaying of brother against brother by the anc against IFP against PAC
Most killings during apartheid was black on black, the struggle that you fought was amongst yourselfs and the war that you fought was amongst yourselfs, the war on apartheid was fought amongst whites, britian US, OZ infact the entiry world against afrikaans supremecy as it also makes since that the afrikaans defence force was the best in world and operating all over africa which is the richest continent in world tends to make the western world a little edgy due to the Nature that the apartheid government is showing danger signs of being Nazis, the soltuon was sanctions that brought south africa down to its knee
Now taking 9,325 died killed by black on black (politicle parties) and compared to 518 deaths by security forces, who really is your enemy?
Ignorance + disregard = INDIFFERENCE!
“All that is necessary for the triumph of evil is that good men do nothing.”
I guess there were many MANY good people around during Apartheid
Chris,
All those statistics are indeed quite interesting, but irrelevant to the point I am making. I never said whites killed more black people or blacks killed more black people or anything like that.
My point was, and still is, I refuse to accept that there were white people who were so ignorant that they never saw the killings. As for Michael assertion that they were indeed that ignorant, I wonder what has since changed since 1994 – why are they suddenly so interested in the news?
I get the sense that people want to suggest that we are worse off now than we were during apartheid. I suppose it might be so if you are a white South African in 2009 because you are not really comparing the current experience to anything else – pre 1994 you probably felt more safer and secured than you do now. I sincerely hope that I am wrong!!
Of course we feel less safe and secure than Pre 1994!
There was a significant restriction on the freedom of movement for the other race groups and the way the civil engineers build our suburbs were essentially to shutout any possibility of the hordes accessing our plusher suburbs.
Must say it was quite brilliant! There were maybe two or three exits out of any township in South Africa at the time and by simply blockading those roads you could simply keep them in their place and wait until they finished their looting, tyre burning and that tribal dancing that some of us are actually quite fond of now.
Mzo – most of the early killings by the security forces were one offs & heavily disputed (Sharepeville excluded). I´’m talking about deaths in detention of the likes of Stanza Bopape and Ahmed Kathrada.
The government pleaded innocense and censored the newspapers.
White policemen must have seen many deaths however.
As for the activities of Vlakplaas, well they were by their very nature kept secret. When the Weekly Mail and Vryeweekblad first published Dirk Coetzee’s accounts it caused a scandal.
Chris McDaniel, your figures, although correctly qouted in that they are from the TRC are false. I worked for the TRC and it was a shambles. The real figues are in all likelyhood a few thousand higher.
But your main point that the levels of violence is comparably low to say the struggle for independence in Algeria or Kenya still stands.
Mzo
far from irrelevant 7000 black africans died under the apartheid during those yrs, what I understand about the apartheid, the government was an elite group a small group that even the english whites hated but to suggest that every single security police during that era knew of every single killing that took place of the total of 7000 which the security force is accused of is unrealistic or even what coded top secret operations took place and who took who to what location is once again unrealistic
Im sorry i agree with Michael there were or must of been some whites who where oblivious to what happened to some top secret operations that took place.
Beside Mzo you got no evidence to deny that any way
Quite correct, many whites didn’t know about the top secret operations to eliminate real and potential threats to the Apartheid government. And even if they did, what could they possibly have done??
Many Germans during the Nazi reign objected to the ideology that Hitler spewed but were helpless to do anything.
Chris & Kameraad
“to suggest that every single security police during that era knew of every single killing that took place of the total of 7000 which the security force is accused of is unrealistic or even what coded top secret operations took place and who took who to what location is once again unrealistic”.
I don’t know who suggested this because I did not, nor could I ever do.
You seem to fail to grasp my point. I said I accept that most white SAs did not know about those secret operations. Indeed, Chris is right, it would be unrealistic and absurd to expect them to have known about these operations which were, primarily done in secret. Similarly, I am sure there were people in the liberation movement who never saw how the “impimpis” (spies) were treated by those at the top.
My issue with Michael’s statement is its general nature, to the effect that some white people absolutely had no idea. It’s like they only heard about events like the 1976 killings post-1994. That cannot possible be true. Sure, they may have been led to believe that the killings were for their own good (which is something else), but they damn sure would have seen them.
“Beside Mzo you got no evidence to deny that any way”
I do not need to have any evidence, it’s common sense. In any event, I don’t know if you would have any evidence that some people were completely unaware of the killings.
In this age of advanced telecommunications mediums, they are many Americans that are unaware of Guantanamo Bay and its sole purpose! So Michael’s Statement isn’t that far-fetched.
Kameraad Mhambi // Aug 19, 2009 at 12:29 pm
well then we must agree that the balance between the 2 (post aparheid and during apartheid) is roughly correct with regards to the killings and we should use these figures as a ball park unless someone can provide more accurate figures and now looking at the security forces I also have to agree that every personnal who was working in the security force at that time would not neccessarily have known what all operations took place and to what levels ie torture murder and so on took place, I do believe there was some elitist within the security force who would of covered this up.
Mzo // Aug 19, 2009 at 1:04 pm
“I do not need to have any evidence, it’s common sense. In any event, I don’t know if you would have any evidence that some people were completely unaware of the killings.”
Im afriad I cant answer this, im not south african, however you are blessed to asr that question to some of the white guys and girls on here, whether they knew of killings that took place?
Michael did you know of any killings when growing up during apartheid?
Mzo did you know of any? during apartheid that you personnaly witnessed?
I’m kinda lost now …. what was the purpose of determining whether a specific amount of white South Africans “knew” about the state secretly sanctioned killings?
Harold Ferwood // Aug 19, 2009 at 1:29 pm
well im guessing to show that the not informed white africans were also lied to by the very government they elected during that time, and would give a greater understanding as a society as a whole that blacks and whites actually arnt that different, white people seem to accuse black people for being stupid enough to elect the same government but yet the white africans here were stupid enough to elect the same government into power…..lol it must be an african thing whether you white or black
and that your true enemy isnt white or black but government itself.
Chris, to answer your question, Yes, I was aware that the apartheid government murdered political opponents. But many, many white South Africans did not.
Mzo, allow me to challenge you directly on this score. Posit a white South African housewife, circa 1984, living in, say, Ermelo. She (a) never reads any newspaper; (b) has no black friends or associates; (c) never makes a point of listening to a news broadcast — although she might occasionally overhear SABC-TV 19h00 news in the background while she is peeling potatoes for her husband’s dinner.
How do you propose she would become aware of the fact that the police and army were, even at that moment, murdering opponents of apartheid?.
Thanks for clarifying. I now see why the previously “ignorant/uninformed/lied to” are making a concerted effort to restore and repair the damage with they simply didn’t know about.
“Posit a white South African housewife, circa 1984, living in, say, Ermelo. She (a) never reads any newspaper; (b) has no black friends or associates; (c) never makes a point of listening to a news broadcast — although she might occasionally overhear SABC-TV 19h00 news in the background while she is peeling potatoes for her husband’s dinner.”
- These bloody Bantus are always making trouble!
Michael
Fast forward to 2009, would the same wife know about AA and the “black governement”?
I think she would, simply because even back then she probably had a black person working for her either as a garden boy or maid (she probably still does even now).
I think you are giving SABC of 1984 far too less credit, even back then they would show the pictures but, perhaps, twist the story line. Regardless, she would have seen the killing.
By the way Chris, I did lose someone very close to me but that’s neither here nor there.
She’s in Australia now …..
Mzo, I am astonished at your confidence in public knowledge of political matters. Are you aware of studies demonstrating that, even in media saturated societies, most people are utterly out of touch with public affairs? (There are surveys showing, for example, that in the height of the cold war, more than 60% of Americans were not aware that the USSR was not a member of NATO )
Also:
1. You mention that the hypothetical Ermelo housewife probably has a garden “boy” or maid. How much time do you think the two of them spent chatting about politics and how things were going in the townships, ever?
2. As for the SABC, did you every have the privilege of watching SABC news in the old days? I suspect not, if you really think that government killings were shown by the state broadcaster.
> from a time prior to the granting of amnesty,
What could “before” possibly mean other than “a time prior to the”.
And why can’t SA-law-people say/write “before” ? I.e. 1 word instead of 5!
Even the Zim. law text is much better than SA’s.
Some say it’s because the SA text was translated from Dutch to
English to Afrikaans..to…with distortions added at each stage.
{{“[t]he emerging trend in statutory construction is
to have regard to the context in which the words occur, even where
the words to be construed are clear and unambiguous.” This has
been the consistent approach of this Court when interpreting
statutes. The move away from the “plain words” of the statute is
necessitated by the fact that the text of the Constitution and the
legislation giving effect to its provisions is value-laden and
“value can hardly be expressed in clear and unambiguous language.”}}
Thanks, that’s why I read this blog; I’m going to take that as authority.
——–
{{ it does send a signal that the Amnesty process is a balanced
one and that the granting of Amnesty does not completely wipe
the slate clean regarding anyone’s past.}}
I’d like to find the time to read the judgment but I suspect that
it was NOT ‘a balanced one’: i.e. a fuzzy decision which required
‘balancing’. The argument that a prior granted civil judgment would
stand seems ‘crisp’. Note the rarely applicable justification for
“prior” over “before”
I have been refused employment by two state department based on my previous conviction for common assault. In this case I only paid a R50-00 fine, based on meritof the case.My question is this : Does my competency and ability to be employed by the state erroded by this crime? It’s my right to employment not violated in this case? I could Understand if I was sentenced to prison . I am not a murderer, rapist or a fraudster. Lastly, how many people in the goverment are having serious crimes but are still employed in the goverment? Is what good for the gander not good the geese?