TRC Final Report

Volume 1

Chapter 7

Subsection 9

Implications for the work of the Commission

73 Following the terms of the settlement, the Commission formally adopted procedures to comply with the provisions of section 30.

74 There were now two judgements that substantially supported each other: that of the Full Bench of the Cape High Court and that of Judge Buchanan. These were in conflict with the earlier decision of Judge King.

75 The Commission awaited the decision of the Appellate Decision in order to deal conclusively with the issues.

Postscript

76 It is important to note that Gideon Nieuwoudt (a member of the Port Elizabeth Security Branch between 1977 and 1989) applied for amnesty for the following: the kidnapping and killing of Siphiwe Mthimkulu and Topsy Madaka in April 1982; the kidnapping and death of the ‘Pebco Three’ in May 1985; the Motherwell incident in which four people were killed in December 1989; the assault on Peter Jones and Steve Biko in September 1977 and the assault on Mkhuseli Jack in August 1985.

■ CHALLENGES TO THE IMPARTIALITY OF THE COMMISSION

The National Party v Desmond Mpilo Tutu and Others

77 The case was brought by the National Party of South Africa against Desmond Mpilo Tutu, Alexander Lionel Boraine, the Truth and Reconciliation Commission, the President of the Republic of South Africa and the Minister of Justice.

Background

78 At a press conference on 15 May 1997, members of the Commission expressed certain views concerning the testimony presented to the Commission by former State President, Mr FW de Klerk on 14 May 1997.

79 Following the press conference, on 2 June 1997, attorneys acting on behalf of the NP wrote to the Commission alleging that the conduct of both the chairperson and the vice-chairperson of the Commission had contravened certain provisions of the Act, in particular sections 36(5)(a) and 36(6)(a). The letter demanded an unconditional apology and an undertaking that the said members of the Commission would comply with the provisions of the Act. It also threatened urgent legal action in the event of a failure to comply with these demands.

80 The gravamen of the relief sought by the NP amounted to a censure of the chairperson and the removal from office of the vice-chairperson of the Commission.

81 After an exchange of various letters and unsuccessful attempts on the part of the Commission to arrange a meeting with the NP to discuss and settle the matter, the NP launched an urgent application in the Cape Provincial Division of the High Court.

82 The matter eventually came before the court on 5 September 1997, when further inconclusive steps were taken to settle the matter. The matter was eventually postponed after the presiding judge urged the parties to take serious steps to settle. In view of the fact that the chairperson of the Commission was abroad at the time, it was decided that the matter should stand over pending his return, whereafter the parties would meet with a view to effecting a settlement.

Settlement

83 At a meeting on 19 September 1997, both the chairperson and vice-chairperson of the Commission issued personal apologies for criticising the evidence presented by Mr FW De Klerk on behalf of the NP.

84 It was further agreed that the issue of co-operation between the NP and the Commission would be pursued in further discussion between the parties.

85 Consequently, the NP withdrew its application and it was agreed that each party should pay its own legal costs.