On Amnesty and its consequences

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.

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